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[ { "docid": "6153578", "title": "", "text": "OPINION GOETTEL, District Judge: I. FACTS Schulman Urban Development Associates, whose successor in interest is Schul-man Master Limited Partnership I, entered into a commercial lease agreement with Ferndale Corporation (“Ferndale”) on March 31, 1984. This contract provided that Ferndale would lease a portion of the third floor of a commercial building located at 170 Hamilton Avenue, White Plains, New York, for approximately a ten-year term. The lease’s payment provisions provided for a set monthly rent, plus a percentage of certain enumerated costs of operating the premises. The lease stated that the tenant could request documentation from the landlord as to any of these additional “costs of operation.” Moreover, to the extent any disagreement over these costs arose, either party could seek a ruling by an independent accountant/arbitrator appointed by the Westchester County Bar Association. In December 1986, Ferndale received one such operating costs invoice. Ferndale wrote to Schulman later that month complaining about the invoice and requested documentation regarding the expenses listed. At that time, Ferndale actually paid the amount due pursuant to the invoice, but specifically reserved its rights to challenge the bill. Schulman responded to the letter by outlining the various charges, but allegedly failed to provide Ferndale with any actual documentation. Unsatisfied with Schulman’s response, on April 8, 1987 Ferndale again wrote to Schulman requesting documentation for review by an independent certified public accountant (“CPA”) whom Ferndale would pay. In addition, Ferndale stated that, if necessary, the explicit lease procedures for the appointment of an independent CPA/arbitrator would be implemented. The parties then engaged in a series of negotiations in an effort to settle this dispute. Finally, in approximately December 1988, it appears that Barry Steinfink, a CPA hired by Ferndale, was permitted access to Sehulman's records to conduct an inquiry into the invoices presented to Fern-dale. Steinfink’s inquiry continued during 1989. On October 18, 1989, however, Schulman wrote to Ferndale explaining that it would no longer permit Steinfink access to its documents and that it was planning to implement the lease’s provisions for appointment of an independent CPA/arbitrator. Thereafter, on November 3, 1989, Ferndale informed Schulman" } ]

[ { "docid": "22788008", "title": "", "text": "The record does not show that the parties discussed the rent escalator during the negotiations which led to the Amendment. The application of this rent escalator to the Amendment reignited the dispute between the Bermans and Jordan Mitchell, Inc. Paragraph 3 of the Amendment referenced an appended table setting forth the annual rent due. It states: “As rent for the lease premises during the extended term of the Lease, Lessee shall pay the annual amounts as set forth in the following Table....” App. at 141-42. The Bermans contended that the rents in the table were minimum annual rentals which could be retroactively increased under Article 1 of the Rider to the original Lease. After the parties executed the Amendment, H.P. and the Bermans tried to use the escalator clause found in the Rider to increase the rent, not just prospectively for rent that would become due in the extended term, but also retroactively for rent that had become due in the original term. H.P. sent Jordan Mitchell, Inc. a bill for $1,416.20 on February 10,1988. H.P. said this represented Jordan Mitchell, Inc.’s proportional amount of local real estate tax increases for the years 1982 through 1988. Jordan Mitchell, Inc. paid this bill but now says it did so mistakenly. Jordan Mitchell, Inc. has since refused to pay the Bermans or H.P. any more of the rent H.P. claims is due under the escalator. On October 13, 1988, H.P. sent Jordan Mitchell, Inc. a bill for increased operating expenses, also in apparent reliance on the rent escalator. When Jordan Mitchell, Inc. did not pay, Myron Berman asked Philadelphia Gas Works (“PGW”) to cut off the gas to the leased premises. Jordan Mitchell, Inc. avoided termination of service by arranging for direct billing. On March 7,1989, H.P. offered to waive its October 13, 1988 claim for additional rent if Jordan Mitchell, Inc. would sign a new three- year lease. Jordan Mitchell, Ine. refused. The Bermans then directed Fox Rothschild to obtain and execute on a judgment for the rent claimed unpaid. On May 16, 1989, Martha Chovanes, Esq. (“Chovanes”), a Fox Rothschild" }, { "docid": "9588292", "title": "", "text": "At that point, it generates a bill to send to its lessees for reimbursement. The lease requires the lessee to reimburse McDonald’s within 30 days of receipt of its bill. What is in dispute, is how the debtor was billed for 1998 taxes by McDonald’s. McDonald’s contends that its ordinary practice is to send a bill directly to the lessee for taxes owed. The debtor contends that it does not have a copy of any bill from McDonald’s but was instead billed by the McDonald’s franchisee who shares the real property with the debtor’s Front Runner Market. The debtor contends that it paid the McDonald’s franchisee upon receipt of a bill from the franchisee. McDonald’s put on no proof to rebut this contention as true. McDonald’s contends, and correctly so, that the debtor was obligated to pay McDonald’s and not its franchisee. The relevant lease provision are found at Section 4, paragraph C of the lease: Except as set forth in this Agreement to the contrary, Company shall reimburse McDonald’s for 50% of the real estate taxes paid by McDonald’s pursuant to this Article 4. Company’s obligation to reimburse McDonald’s for real estate taxes will commence on the day rent commences to accrue and will cease on the date of the expiration or termination of this Agreement. Company shall pay its share of the tax bill within 30 days after McDonald’s notifies Company of the amount and furnishes Company with a copy of the receipted tax bill and the calculation by which Company’s share has been determined. Mr. Tilton explained that 1998 was the first year that taxes were due by the debt- or under the lease acquired at the end of 1997. The franchisee billed for all CAM charges monthly, and when the debtor received the bill from the franchisee, it assumed it was to pay the franchisee for its share of the taxes. It is undisputed that the debtor did pay the franchisee when billed. Mr. Tilton testified credibly that the debtor was unaware of the problem with the taxes until it was notified post-petition by McDonald’s that" }, { "docid": "20311503", "title": "", "text": "Heritage’s payments to Agency, the only other evidence at trial regarding the third prong of the ordinary course defense is as follows: Q. And was the manner in which Heritage paid and an agency [sic] received payment common in the industry? A. Yes. Q. And how do you know that? A. Because that’s my understanding of what industry standard is. Testimony of Walker (1/14/09) 107:19-24. Similarly, with respect to Heritage’s payments to Properties, the only other evidence in the trial record is as follows: Q. Ms. Walker, with respect to Properties, what was the protocol for how bills were paid, invoices sent from Properties and that invoice paid by Heritage? A. It would be on — around the 25th of the month an invoice would be sent for the coming month to Heritage and Heritage would pay the invoice shortly thereafter. Q. Was that conduct maintained both prior to and after February 17, 2004. A. Yes. Q. Ms. Walker, you just described various protocols with respect to ... Properties .... A. Yes. Q. Based upon those protocols that you’ve stated, can you tell the Court whether or not those protocols were common in the industry in which each one of those business were operating? A. It is my understanding that they were. Q. And what do you base those opinions, and if separate, please state so. A. On the research that I did which— which I have — which I have previously discussed.... With respect to the office space leases, every office space lease that I’ve ever seen the rent is due on the 1st of the month for that month and that applies to commercial as well as residential, as I said, for everything I have ever seen.... Q. What experience do you have, aside from the research, that you believe enables you to state that the terms and the protocols were protocols that were industry standard? A. As I said previously, every lease that I’ve ever seen, and I have executed a number of them in my lifetime, for real property the rent is due on the 1st." }, { "docid": "13189666", "title": "", "text": "4, 1992, McDermott, on behalf of Chemical, sent a letter addressed to Desmond Lawe, the Director of Billing and Collections for Rockefeller Center Group, Inc. in regard to the MHT 600 Fifth Avenue Lease, which stated: “You are hereby notified that your invoice(s) for operating expense escalations for the years 1991 and 1992 are rejected.' Furthermore we contest the escalation payments already paid for the year 1990. We believe the charges in total are inappropriate due to the fact that the space has been vacant for the past three years. We reserve the right to conduct an audit of your books to ascertain the actual expenses incurred on our behalf. Until such time that we hear from you to make arrangements to do so, we cannot process the invoices for payment. Meanwhile, kindly note that time is of the essence.” (Emphasis added). See McDermott Affidavit at Exhibit D. The letter made no reference to operating expense escalations for any lease other than the MHT 600 Fifth Avenue Lease. Nor does the McDermott Affidavit indicate whether McDermott had reviewed the pertinent terms of the MHT 600 Fifth Avenue Lease before sending the letter. Nothing in the McDermott Affidavit states that he received any reply to his December 4 letter. Moreover, Chase has failed to put forth any evidence that McDermott or any other of its employees took any further action to follow up after McDermott sent the December 4,1992 letter to Lawe. 24. In June 1994, Chemical issued three checks to the Reorganized Debtors aggregating approximately $1.1 million, only two of which relate to the Leases. One was a check for $994,845.67 for the operating expense escalations due for the premises leased under the MHT 600 Fifth Avenue Lease, which space McDermott had stated in his December 4, 1992 letter was vacant and which space was presumably still vacant in June 1994. The second check, for $101,512.28, was to pay the amount due because of Chemical’s apparently inadvertent underpayment of monthly escalation billings under the MHT 30 Rockefeller Plaza Branch Lease. Each check was marked “Paid under Protest.” McDermott’s transmittal letter" }, { "docid": "22788007", "title": "", "text": "fall due or be in arrears; ... App. at 136. There is nothing in the record in Jordan Mitchell’s case against the Ber-mans to show that paragraph 11(e) was .specifically discussed either originally or during the negotiations over the Amendment, or that Joe J. Jordan, FAJA, P.C. had counsel when it signed the Lease form. Not surprisingly, there is likewise no reference to any such specific discussions in the complaint against Fox Rothschild, and the Amendment does not set forth paragraph ll(e)’s text or expressly refer to any power to confess judgment. The original Lease contained a Rider that is material to these cases. The Rider granted H.P. the option of charging Joe J. Jordan, FAIA, P.C. additional rent in an amount equal to the lessee’s proportionate share of any increases in taxes or operating expenses. The Rider required notice from the Landlord to the Tenant before the rent could be increased. Neither H.P. nor the Bermans ever gave any notice of their intention to increase the rent during the original term of the Lease. The record does not show that the parties discussed the rent escalator during the negotiations which led to the Amendment. The application of this rent escalator to the Amendment reignited the dispute between the Bermans and Jordan Mitchell, Inc. Paragraph 3 of the Amendment referenced an appended table setting forth the annual rent due. It states: “As rent for the lease premises during the extended term of the Lease, Lessee shall pay the annual amounts as set forth in the following Table....” App. at 141-42. The Bermans contended that the rents in the table were minimum annual rentals which could be retroactively increased under Article 1 of the Rider to the original Lease. After the parties executed the Amendment, H.P. and the Bermans tried to use the escalator clause found in the Rider to increase the rent, not just prospectively for rent that would become due in the extended term, but also retroactively for rent that had become due in the original term. H.P. sent Jordan Mitchell, Inc. a bill for $1,416.20 on February 10,1988." }, { "docid": "13189664", "title": "", "text": "no duty to preserve any such records, or any data or material related thereto, beyond such time as shall be its customary practice with respect thereto, but, notwithstanding the foregoing, the Landlord will preserve all such records, data and material relating to any Computation Year for at least one year after the end of such Computation Year.” See Appendix C to Amended Joint Statement, Rider S. 20. The MHT 1230 Avenue of the Americas Lease provided a no interest grace period should MHT have requested information substantiating the Escalation Statements. The relevant provision states: “ * * * If any fixed rent, additional rent, percentage rent (if any) or damages payable hereunder by the Tenant to the Landlord is not paid when due as in this Lease provided (except as to any portion thereof as to which an honest dispute exists as to the Tenant’s Liability therefor), the same shall bear interest * * * from the due date thereof until paid and the amount of such interest shall be deemed additional rent hereunder (See Rider T attached to this Lease)* * *.” Rider I states: “Provided, however, that, if promptly after the receipt of a bill for any additional rent the Tenant shall request the Landlord to furnish the Tenant with information reasonably substantiating the amount of such additional rent, then such interest shall not start to accrue until 5 business days until after the Landlord has furnished the Tenant with such information.” See Appendix D, Article 23 and Rider I to Amended Joint Statement. 21. The other two Leases contain no express audit or grace period provisions. 22. Edward M. McDermott, then an Assistant Vice President of Chemical , was responsible for overseeing and approving the payment of invoices for operating expense escalation items charged to Chemical (and its predecessor, MHT after the 1991 merger) in respect to the Leases under which Chemical and MHT were tenants at Rockefeller Center. See Affidavit of Edward McDermott, sworn to on January 23, 1997, in opposition to the Reorganized Debtors’ Motion for Summary Judgment (“McDermott Affídavit”)(Case Doc. No. 826). 23.On December" }, { "docid": "8811830", "title": "", "text": "16, 1986, H.P. delivered a lease termination notice to Jordan, Mitchell, Inc. dated April 30, 1986. When the plaintiffs’ attorney advised H.P. that in their view the lease had been renewed automatically, defendant Myron Berman told plaintiff Jordan that he would “retaliate” if plaintiffs continued to occupy the premises pursuant to the purported renewal. Acting on instructions from Myron Berman, unnamed individuals disconnected electrical wiring in plaintiffs’ offices on May 22, 1986 and obstructed the entrance thereto on May 23, 1986 by placing trash nearby. As a result, plaintiffs allegedly had to expend sums of money to rectify this situation. Through counsel, the parties to the lease thereafter negotiated an extension, substituting Jordan, Mitchell, Inc. as lessee and extending the lease for a term of three years, commencing August 1, 1986. The extension agreement was executed by plaintiffs on October 29, 1986 and by H.P. on December 8, 1986, and contained a mutual release of all claims arising under the initial lease. The lease provided to lessor the option of charging lessee additional rent in an amount equal to their proportionate share of any increases in taxes or operating expenses. Such rent increases would be predicated upon notice by the lessor. H.P. never increased the rent pursuant to this clause during the term of the original lease. The parties never specifically discussed this provision of the lease during the course of their negotiations over the lease extension. On February 10, 1988, H.P. billed plaintiffs for $1,416.20, a proportional amount of real estate tax increases for the years 1982 to 1988. Plaintiffs paid this amount to the lessor before “realizing” what it was for. Plaintiffs refused to pay the lessor additional rent adjustments that were claimed on October 13, 1988 as a result of increased operating expenses. Defendant Myron Berman then requested Philadelphia Gas Works to terminate gas service to the leased premises. Plaintiffs avoided a termination of service by having PGW bill them directly. Plaintiffs allege that defendants engaged in similar conduct with respect to other tenants. When Diversified Community Services (“DCS”), another tenant in another building under defendants’ control," }, { "docid": "8811831", "title": "", "text": "an amount equal to their proportionate share of any increases in taxes or operating expenses. Such rent increases would be predicated upon notice by the lessor. H.P. never increased the rent pursuant to this clause during the term of the original lease. The parties never specifically discussed this provision of the lease during the course of their negotiations over the lease extension. On February 10, 1988, H.P. billed plaintiffs for $1,416.20, a proportional amount of real estate tax increases for the years 1982 to 1988. Plaintiffs paid this amount to the lessor before “realizing” what it was for. Plaintiffs refused to pay the lessor additional rent adjustments that were claimed on October 13, 1988 as a result of increased operating expenses. Defendant Myron Berman then requested Philadelphia Gas Works to terminate gas service to the leased premises. Plaintiffs avoided a termination of service by having PGW bill them directly. Plaintiffs allege that defendants engaged in similar conduct with respect to other tenants. When Diversified Community Services (“DCS”), another tenant in another building under defendants’ control, refused to pay a retroactive rent increase billed on December 7, 1987 and attempted to move, defendants “refused” them permission to utilize the service elevators for this purpose until they had paid the rent demanded. DCS was permitted to move from the building after it settled a suit they filed against defendants as a result of that dispute. The standard preprinted “Form 60” lease contained a cognovit clause entitling H.P. to confess judgment upon a default in rental payments. The warrant of attorney authorizing the confession of judgment appears on the reverse side of the page with the parties’ signatures. This clause also was not specifically discussed during the lease extension negotiation. Plaintiffs rejected an offer of March 7, 1989 from H.P. to waive its October 13, 1988 claim for additional rent if plaintiff corporation would execute a new three-year lease. On May 16, 1989, counsel filed with the Prothonotary of the Court of Common Pleas of Philadelphia a Complaint in Confession of Judgment against plaintiffs on behalf of Arnold Berman and H.P. Realty, claiming" }, { "docid": "4756707", "title": "", "text": "16,1983, was executed by the Landlord and LeRoy Productions, Inc., as tenant. (DE No. 83, Ex. 1.) By an assignment and assumption agreement dated September 26, 1983, and consented to by the Landlord on October 27, 1983, LeRoy Productions, Inc. assigned its rights under this lease agreement to the Debtor. Aside from the lease agreement dated September 16, 1983, the pertinent documents controlling the terms of the Lease as it now exists are a letter agreement dated September 19, 1983 (DE No. 83, Ex. 2), an Amendment and Modification To Lease Dated As Of September 16, 1983, executed on February 18, 1986 (DE No. 83, Ex. 3), and a Third Amendment and Modification To Lease executed on February 27, 1987. (DE No. 91, Ex. 1 to Declaration of Alan Garmise). Also relevant to the dispute is a Subordination Agreement of February 8, 1984 (Plaintiff’s Ex. 12 to an earlier hearing on a motion from relief from the automatic stay in this case). The initial lease document is lengthy, but the terms pertinent to the pending motion for summary judgment are in comparison brief. Article II (styled “Rent”) provided for the rents to be paid under the lease. Section 2.01 provided for a “Minimum Rent,” including annual rent. Section 2.02 provided for a “Percentage Rent” based on the Debtor’s gross sales and Section 2.03 provided that: “Rent” shall be defined in this Lease as Minimum Rent and Percentage Rent only, which sums shall be payable in the manner provided in the Lease. All other sums of money or charges required to be paid by Tenant under this Lease (hereinafter referred to as “Additional Rent”) shall be due and payable ten (10) days after notice thereof, without any deductions or setoffs whatsoever, unless otherwise stated herein. Tenant’s failure to pay any such amounts or charges set forth in this Lease when due shall carry with it the same consequences under Ar- tide XVII hereof as Tenant’s failure to pay Rent. Artide V (“Site Plans and Improvements to Leased Premises”) divided construction work to be performed on the premises into Landlord’s Work (Ex." }, { "docid": "11497739", "title": "", "text": "to plaintiff billing it for $5,000 as cost contribution. New-berry testified as a witness in this case and while he was not questioned specifically about whether or not payment had actually been received by Delta relative to the April 1969 billing, his responsibility to protect the government’s interests, relative to all costs incurred by the Job Corps center suggests that had some costs, as invoiced, not been paid by plaintiff, Newberry would have surfaced such a fact as part of his audit responsibilities. During the period July 1, 1969-January 31, 1970, Labor incurred costs of $6,478.71 applicable to work performed on elevators, sprinkler system and plumbing. Labor made no request for contribution by plaintiff under the lease provision, supra, relative to these costs. It is noted these costs are somewhat similar to costs incurred dur ing the July 1, 1966-June 30, 1967, period for which Delta made no claim for contribution. The failure of Labor to bill plaintiff for these costs supports an inference that said costs were considered by it to be operating maintenance costs and not repair costs and thus beyond the pale of the lease provision in question. The record will not support recovery by defendant of $13,478.71 under its first counterclaim. Defendant’s second counterclaim, filed just before trial in this case in January 1975, although its answer had been filed on February 25, 1972, is grounded on the provisions of Article XXIII, Additional Rent, of the lease, as supplemented. This Article also serves as the basis for plaintiff’s claim for additional rent payments. Article XXIII provided in pertinent part as follows: In addition to the provisions contained in Section II. of the original lease, Lessee shall pay to Lessor an additional yearly rental in the sum of Thirty Thousand Dollars ($30,000.00), to be paid in monthly payments of Twenty-Five Hundred Dollars ($2500.00) each, commencing at the same time as provided for rent payments in Section II. Such additional rent shall be for the purpose of reimbursing Lessor for real estate taxes, assessments and improvement liens paid upon the leased premises by Lessor. Should the total sum" }, { "docid": "22788009", "title": "", "text": "H.P. said this represented Jordan Mitchell, Inc.’s proportional amount of local real estate tax increases for the years 1982 through 1988. Jordan Mitchell, Inc. paid this bill but now says it did so mistakenly. Jordan Mitchell, Inc. has since refused to pay the Bermans or H.P. any more of the rent H.P. claims is due under the escalator. On October 13, 1988, H.P. sent Jordan Mitchell, Inc. a bill for increased operating expenses, also in apparent reliance on the rent escalator. When Jordan Mitchell, Inc. did not pay, Myron Berman asked Philadelphia Gas Works (“PGW”) to cut off the gas to the leased premises. Jordan Mitchell, Inc. avoided termination of service by arranging for direct billing. On March 7,1989, H.P. offered to waive its October 13, 1988 claim for additional rent if Jordan Mitchell, Inc. would sign a new three- year lease. Jordan Mitchell, Ine. refused. The Bermans then directed Fox Rothschild to obtain and execute on a judgment for the rent claimed unpaid. On May 16, 1989, Martha Chovanes, Esq. (“Chovanes”), a Fox Rothschild attorney, filed a complaint in confession of judgment against Jordan Mitchell, Inc. in the office of the Prothonotary of the Court of Common Pleas of Philadelphia in which the Bermans and H.P. were named as plaintiffs. Simultaneously Chovanes filed a praecipe asking the Prothonotary to enter judgment and issue a writ of execution to the Sheriff. In their action in confession, the Bermans claimed $41,082.62 for rent in arrears plus related charges, less credit for a security deposit. Myron Berman, in his capacity as “managing agent” of H.P., executed the affidavit of default Pennsylvania law requires. Another Fox Rothschild attorney, Paul J. Brenman, Esq. (“Brenman”), entered his appearance for Jordan Mitchell, Inc., and confessed judgment on its behalf. The Prothonotary entered judgment against Jordan Mitchell, Inc. and issued the writ of execution. It directed the sheriff to serve on Fidelity Bank (“Fidelity”) an order garnishing Jordan Mitchell, Inc.’s checking account. The sheriff did so. The order required Fidelity to freeze the funds in Jordan Mitchell, Inc.’s cheeking account to whatever extent necessary to ensure payment" }, { "docid": "16842989", "title": "", "text": "real estate taxes for 1988. Their 1988 tax assessment did not reflect the newly constructed building because the property was not improved until after January 1, 1988, the valuation date for the 1988 tax appraisal. For 1989, the Kim-brells paid $52,747.38 in real estate taxes. The increase was due not only to the addition of the building, but also to a major increase in real estate tax rates. Pursuant to the tax escalation clause, the Kimbrells sought reimbursement for 1989 tax payments that exceeded the $14,931.00 estimated tax bill for 1989 reflected in the Lessor’s Annual Cost Statement, which accompanied the Kimbrells’ bid for the lease. The contracting officer denied the Kimbrells’ request, on the grounds that: (1) The lease commencement date is established as December 1, 1988. (2) No full tax assessment was made during the calendar year (1988) in which the lease commenced. The first full tax assessment was made in the 1989 tax year. Thus, 1989 is the base year for tax adjustment purposes. (3) Eligibility for tax adjustment, therefore, begins with the 1990 tax year compared to the 1989 tax year. (4) Since the Kimbrells in 1990 paid $52,-111.32, $636.06 less than the amount paid in 1989, the Kimbrells were not entitled to an adjustment. Rather, pursuant to the tax adjustment clause in the lease agreement, the Kimbrells were required to discount the rent paid by the government in the amount of $636.06. The Kimbrells challenged the contracting officer’s decision, claiming that the contracting officer had improperly failed to recognize 1988 as the base year per the first sentence of the tax escalation clause. The parties submitted their claims to the GSBCA, and the GSBCA upheld the denial of the Kim-brells’ claim for an equitable adjustment and sustained the government’s claim for an award of $636.00. The Kimbrells now appeal the decision of the GSBCA. Our jurisdiction is based upon 28 U.S.C. § 1295(a)(10) (1988). ANALYSIS I. This case, as the GSBCA opinion properly noted, turns upon the proper interpretation of the tax escalation clause in the lease agreement. Contract interpretation involves questions of law, B.D." }, { "docid": "13189665", "title": "", "text": "Rider T attached to this Lease)* * *.” Rider I states: “Provided, however, that, if promptly after the receipt of a bill for any additional rent the Tenant shall request the Landlord to furnish the Tenant with information reasonably substantiating the amount of such additional rent, then such interest shall not start to accrue until 5 business days until after the Landlord has furnished the Tenant with such information.” See Appendix D, Article 23 and Rider I to Amended Joint Statement. 21. The other two Leases contain no express audit or grace period provisions. 22. Edward M. McDermott, then an Assistant Vice President of Chemical , was responsible for overseeing and approving the payment of invoices for operating expense escalation items charged to Chemical (and its predecessor, MHT after the 1991 merger) in respect to the Leases under which Chemical and MHT were tenants at Rockefeller Center. See Affidavit of Edward McDermott, sworn to on January 23, 1997, in opposition to the Reorganized Debtors’ Motion for Summary Judgment (“McDermott Affídavit”)(Case Doc. No. 826). 23.On December 4, 1992, McDermott, on behalf of Chemical, sent a letter addressed to Desmond Lawe, the Director of Billing and Collections for Rockefeller Center Group, Inc. in regard to the MHT 600 Fifth Avenue Lease, which stated: “You are hereby notified that your invoice(s) for operating expense escalations for the years 1991 and 1992 are rejected.' Furthermore we contest the escalation payments already paid for the year 1990. We believe the charges in total are inappropriate due to the fact that the space has been vacant for the past three years. We reserve the right to conduct an audit of your books to ascertain the actual expenses incurred on our behalf. Until such time that we hear from you to make arrangements to do so, we cannot process the invoices for payment. Meanwhile, kindly note that time is of the essence.” (Emphasis added). See McDermott Affidavit at Exhibit D. The letter made no reference to operating expense escalations for any lease other than the MHT 600 Fifth Avenue Lease. Nor does the McDermott Affidavit indicate whether" }, { "docid": "9588296", "title": "", "text": "the evidence. The lease simply requires that the lessee pay McDonald’s within 30 days of receipt of the bill from McDonald’s. McDonald’s was unable to produce an invoice that the debtor was billed by McDonald’s. According to Mr. Tilton, the only bill that the debtor received for 1998 taxes was from the franchisee, not McDonald’s. McDonald’s could only show that its normal procedure was to generate an invoice and bill the lessee directly upon payment of taxes. If in fact McDonald’s billed its franchisee for the full amount of taxes owed by both the franchisee and the debtor, then no bill would have been sent by McDonald’s to the debtor. Perhaps McDonald’s did send an invoice, but sent it to an incorrect address, or possibly the invoice was sent directly to the debtor, but mishandled or thrown out because the debtor thought it had already paid the taxes. The truth is that the truth is unavailable. An unknown as to what occurred means that McDonald’s failed to demonstrate that the debtor was in default under the lease with respect to payment of its taxes. Furthermore, even if the debtor was in default, the debtor was ultimately the successful party in assuming the lease therefore depriving McDonald’s of any right to attorney fees under the terms of the lease. Accordingly, while McDonald’s may have incurred the expense of outside counsel, it has no right to seek payment for attorney fees from this debtor for alleged defaults with respect to taxes, insurance or rent. The only remaining issue is whether McDonald’s is entitled to attorney fees for the efforts expended in negotiating additional protections for McDonald’s in the cash collateral order. Of the $13,257.04 sought by McDonald’s in fees and expenses , $3,807.50 relate to fees allocated to cash collateral issues. The terms of the lease permit the recovery of attorney fees to the successful party of any “action or proceeding against the other relating to the provisions of [the] Agreement, or any default under this Agreement.” Again, by looking at the contract the court attempts to ascertain the intention of the" }, { "docid": "4402852", "title": "", "text": "the invoice that Delta sent to plaintiff billing it for $5,000 as cost contribution. Newberry testified as a witness in this case and while he was not questioned specifically about whether or not payment had actually been received by Delta relative to the April 1969 billing, his responsibility to protect the government’s interests relative to all costs incurred by the Job Corps center suggests that had some costs, as invoiced, not been paid by plaintiff, Newberry would have surfaced such a fact as part of his audit responsibilities. During the period July 1, 1969 — January 31, 1970, Labor incurred costs of $6,478.71 applicable to work performed on elevators, sprinkler system and plumbing. Labor made no request for contribution by plaintiff under the lease provision, supra, relative to these costs. It is noted these costs are somewhat similar to costs incurred during the July 1, 1966 — June 30, 1967, period for which Delta made no claim for contribution. The failure of Labor to bill plaintiff for these costs supports an inference that said costs were considered by it to be operating maintenance costs and not repair costs and thus beyond the pale of the lease provision in question. The record will not support recovery by defendant of $13,478.71 under its first counterclaim. Defendant’s second counterclaim, filed just before trial in this case in January 1975, although its answer had been filed on February 25, 1972, is grounded on the provisions of Article XXIII, Additional Rent, of the lease, as supplemented. This Article also serves as the basis for plaintiffs claim for additional rent payments. Article XXIII provided in pertinent part as follows: In addition to the provisions contained in Section II. of the original lease, Lessee shall pay to Lessor an additional yearly rental in the sum of Thirty Thousand Dollars ($30,000.00), to be paid in monthly payments of Twenty-Five Hundred Dollars ($2500.00) each, commencing at the same time as provided for rent payments in Section II. Such additional rent shall be for the purpose of reimbursing Lessor for real estate taxes, assessments and improvement liens paid upon the" }, { "docid": "13189697", "title": "", "text": "this. Moreover, the Leases provided for the Reorganized Debtors to charge the tenants with their pro rata share of the increase from their respective Base Years of the “actual cost * * * incurred by the landlord with respect to the operation, maintenance and repair of [Rockefeller] Center.” (emphasis added). Although certain permitted operating expenses are explicitly listed in the Leases, the Leases provide that the list is not exhaustive. See Findings 13 and 14. The court finds that even if Chase is correct, it has waited too long and has not sufficiently pled its ease to challenge the settled and paid 1989-1993 Additional Rent under the four Leases. The account stated doctrine precludes all disputes except for the narrow category of factual mistakes or fraud. American Home, 1991 WL 4461, *3. Chase has failed to meet its burden in establishing the sort of mistakes cognizable in law to support an adjustment of the stated accounts. Chase Failed To Make An Effort To Determine Its Obligations Chase argues that it paid the alleged overcharges because at the time the Escalation Statements were rendered, “Chase was unaware of (and had.no reason to be suspicious of) the * * * overbilling practices of RCP. * * * Chase had no reason to distrust its landlord; and it assumed that the bills sent by RCP were calculated in accordance with the Leases” and that “Chase has only recently become aware of the scope and magnitude of the overcharges it paid the debtors.” McDermott Affidavit at ¶¶ 16 and 17; Chase’s Memorandum in Opposition to Debtors’ Motion for Partial Summary Judgment at p. 6. Chase states that because the Escalation Statements only set forth the square footage upon which the Reorganized Debtors made their calculations and do not refer to the composition or calculation of the cost escalation, which facts they claim “are uniquely within the Debtors possession and control” Chase should be permitted to re-open and adjust the settled accounts. McDermott Affidavit at ¶ 16. The Reorganized Debtors’ respond that Chase has misapprehended the law and has grossly underestimated the limitations it faces" }, { "docid": "1276447", "title": "", "text": "Franklin Boulevard’s bill to Carrane of West Side, although no contract then existed between Commercial Vision and West Side. See West Exhibit 22, Miller November 21, 1988 Letter. 35. On December 2, 1988, Commercial Vision sent to Novak of West Side a copy of the May 10, 1986 lease and maintenance agreement with Franklin, as Novak requested. See West Side Exhibit 23, Kaluz-na December 2, 1988 Letter. 36. On December 27, 1988, Novak of West Side wrote to Kaluzna of Commercial Vision requesting breakdown of charges as between the security cameras and televisions. See West Side Exhibit 24, Novak December 27, 1988 Letter. 37. On January 4, 1989, Kaluzna wrote to Novak enclosing a breakdown of Commercial Vision’s monthly charges to West Side. See West Side Exhibit 25, Kaluzna January 4, 1989 Letter. 38. On February 6,1989, Kaluzna wrote to Edward Lorgeree (“Lorgeree”), the Vice President of Sacred Heart, setting forth his understanding of mutually agreed-upon changes between Commercial Vision and West Side to the lease and maintenance agreement Commercial Vision had earlier entered into with Franklin Boulevard. See West Side Exhibit 26, Kaluzna February 6, 1989 Letter. The parties orally and impliedly agreed to be bound by the earlier agreement as thereby amended. Pursuant to the agreed changes, some equipment was to be and later was removed, and the total monthly charge reduced from $2,750 to $1,200. 39. Thereafter, Commercial Vision sent bills to West Side for the months January, 1989 through May, 1989. The April and May invoice erroneously sought monthly amounts of $2,750 from West Side. That $2,750 amount was the previous amount Commercial Vision charged Franklin Boulevard, not the $1,200 reduced monthly payment agreed to in February. See West Side Exhibits 27 through 33, Invoice Statements from Commercial Vision. See also West Side Exhibit 46, Kaluzna Deposition Transcript, at 42-43. 40. West Side made two payments to Commercial Vision, $1,200 on March 8, 1989, and $2,400 on March 29,1989. Those payments covered three monthly payments at the agreed reduced rate. 41. Kaluzna prepared a summary of the obligations West Side then owed and still owes to" }, { "docid": "10891265", "title": "", "text": "established that Overmyer filed a proof of claim subject to dispute. Regarding the $50,000 per month lease payments beginning in January, 1981, on the transmitter and antenna, the district court found that “Telecasting had actual possession of the transmitter equipment pursuant to a lease agreement with Hadar and that Hundred East began invoicing Hadar in January.” The court reasoned: The fact that the lease agreement contained a provision stating rental payments would not commence until installation had been completed does not operate as some type of legal bar to the filing of a proof of claim as was done in this instance. Nor does the lease term preclude the lessee from making payments to the lessor of more monies than the lease itself required or before the payments are due. Regarding the second specification of falsity in Count One, that the $249,116.18 sum contained in the proof of claim contained charges for installation not incurred as of February 6, 1981, the district court also found that a reasonable jury considering the evidence and instructions of the court, could not find the proof of claim false in this respect, but only that a clerical error had been made. The court held: [t]he single fact that the [$44,000 Hood Electric] charge was included in the Hadar claim as an installation expense for the Hundred East equipment does not amount to a material falsehood. The undisputed evidence is that Hadar was billed by Hood for the generators and thereafter charged Telecasting. Thus, the mere listing of the invoice under the wrong heading does not constitute sufficient evidence for the jury to find the claim was false. However, the evidence before the jury also revealed that Telecasting had previously been billed by Hadar for the lease of Hood generators. Hence, the proof of claim presented a double-billing or charge by Hadar for the generators. The district court also found that the government had not met its burden in establishing the third specification of falsity in Count One, namely that as of February 6,1981, Telecasting had overpaid Hadar for its leasing obligations. The district court" }, { "docid": "20311502", "title": "", "text": "This evidence does not support a finding of ordinary business terms in the relevant industry. Moreover, at trial, the Trustee’s counsel asked Walker what experience she had in each of the industries in which the Supplier Defendants operated, other than her experience at Heritage, and in each case, her response was “none.” With respect to her specific experience in the leasing of office space, her testimony was as follows: Q: Okay. Other than your experience in — with—between Heritage and Heritage Properties and THO Agency, what is your experience, if any, in leasing of office space? A: Well, I’ve been involved in various lease negotiations with — for space with — at different points in time with different companies. Q: But is that on behalf of entities owned or controlled by Mr. Gary Korn-man? A: Yes, I believe so. Audiotape of hearing held 1/13/09, 12:13:24-12:14:02 (on file with Court). Walker thus testified that her only experience in the leasing of office space was the experience she had with companies controlled by Kornman. With respect to Heritage’s payments to Agency, the only other evidence at trial regarding the third prong of the ordinary course defense is as follows: Q. And was the manner in which Heritage paid and an agency [sic] received payment common in the industry? A. Yes. Q. And how do you know that? A. Because that’s my understanding of what industry standard is. Testimony of Walker (1/14/09) 107:19-24. Similarly, with respect to Heritage’s payments to Properties, the only other evidence in the trial record is as follows: Q. Ms. Walker, with respect to Properties, what was the protocol for how bills were paid, invoices sent from Properties and that invoice paid by Heritage? A. It would be on — around the 25th of the month an invoice would be sent for the coming month to Heritage and Heritage would pay the invoice shortly thereafter. Q. Was that conduct maintained both prior to and after February 17, 2004. A. Yes. Q. Ms. Walker, you just described various protocols with respect to ... Properties .... A. Yes. Q. Based upon" }, { "docid": "13189654", "title": "", "text": "was the original tenant (the “MHT 30 Rockefeller Plaza Branch Lease”); and (iii) Lease dated February 27, 1979 which expired prior to the Filing Date and on September 30, 1994, covering office space at 30 Rockefeller Plaza and 1250 Avenue of the Americas, as amended by a .Supplemental Indenture dated as of June 8, 1986 under which Chemical was the original tenant (the “Chemical 30 Rockefeller Plaza Office Lease”); (iv) Lease dated February 6, 1989 which expired prior to the Filing Date and on September 30,1994, for space at 1230 Avenue of the Americas under which MHT was the original tenant (the “MHT 1230 Avenue of the Americas Lease”). Additional Rent Escalation Statements 12. Each of the Leases provided for the payment of a stated annual rent, to be paid in monthly installments throughout the year. In addition, each lease provided for the payment of additional rent (the “Additional Rent”). The method for calculation and payment of the Additional Rent, for which a base year or amount was stated in each Lease, was set forth in each Lease. During the lease year, the Additional Rent to be paid each month was one-twelfth of the final amount of the Additional Rent for the prior year, with the final amount of the current year’s Additional Rent to be fixed after the end of the lease year. Shortly after the end of each lease year, the Reorganized Debtors calculated the actual amount of the Additional Rent due for the just-ended lease year and sent a year-end Escalation Statement to the tenant showing the actual amount of Additional Rent due and the adjustments that were due in favor of the landlord or tenant as appropriate. Each Lease contains identical provisions for the “prompt” payment of the estimated Additional Rent during the lease year and the final adjusting payment upon the tenant’s receipt of an Escalation Statement as follows: “The [1/12] installment [of the Additional Rent payment] for each calendar month [is] to be due and payable promptly upon receipt from the Landlord of a bill for the same; it being understood that if, as" } ]

[ { "docid": "3061064", "title": "", "text": "VAN PELT, District Judge. The issues in this case have been stated in two previous opinions (see D.C., 209 F.Supp. 189 and the unpublished opinion of March 3, 1964). Except as necessary to the decision herein a restatement of the-issues is uncalled for. The guide lines referred to in the unpublished opinion, supra, have been recently furnished by the United States Supreme Court. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (Ala.); WMCA Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (N.Y.) ; Lucas v. The Forty-Fourth General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (Colo.); The Maryland Committee v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (Md.) ; Davis, Secretary v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (Va.); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (Del.), all decided by the United States Supreme Court on June 15, 1964; and Marshall v. Hare, 84 S.Ct. 1912, 12 L.Ed. 2d 1036, per curiam and order of reversal entered by the United States Supreme Court on June 22, 1964 (Mich.). Upon this authority the court holds that the portion of the 1962 amendment of Article III, Section 5 of the Constitution of the State of Nebraska providing that not less than 20% nor more than 30% weight shall be given to area in the creation of Unicameral legislative districts fails to comport with the requirements of the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. We next turn to the effect of Legislative Bills Nos. 629 and 796 enacted by the 1963 Legislature, Laws 1963, cc. 22, 23. It is clear that these legislative enactments attempted to give weight to area under the constitutional amendment, supra. L.B. 629 by section 1 amended Section 5-103, R.R.S.1943, by striking the words “forty three” and inserting in lieu thereof the words “forty nine” thereby increasing the Unicameral membership. It repealed Section 5-104 of the statutes above described which had prescribed boundaries for the 43 districts," } ]

[ { "docid": "12701162", "title": "", "text": "reapportionment cases. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964); Lucas v. Forty-Fourth Gen. Assembly of State of Colo., 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Scott v. Germano, 381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 477 (1965); Silver v. Jordan, 241 F.Supp. 576 (S.D.Calif.1964); Thigpen v. Meyers, 211 F.Supp. 826 (W.D.Wash.1962); Herweg v. Thirty Ninth Leg. Assem of State of Montana, 246 F.Supp. 454 (D. Mont.1965). We therefore turn to other defenses interposed in support of the dismissal of plaintiff’s complaints. We likewise defer consideration of the claim of res ad judicata, and proceed to the meat of the matter. Ill Is subdivision 6 of Rule IV (the admission requirement of graduation from an accredited law school) reasonable, and therefore not violative of the Fourteenth Amendment? Just as the Supreme Court in Schware, infra, refused (353 U.S. at 239 n. 5, 77 S.Ct. at 756) to go into any discussion whether the practice of the law is a “right” or a “privilege,” we need not do so. In either event, any restriction on such practice must be valid, i. e., reasonable. (Compare Lathrop v. Donohue, 367 U.S. 820, 844, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961).) We agree with appellant that for the requirement to be reasonable it must not be arbitrary; the reason for the prevention of practice must be valid. Power Manufacturing Co. v. Saunders, 274 U.S. 490, 493," }, { "docid": "12701161", "title": "", "text": "judicial capacity, to enact rules relative to the admission to practice law, or the requirements therefor. Ex Parte State of New York, No. 1, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921). As is said in Brents v. Stone, 60 F.Supp. 82, 84 (E.D.Ill.1945): “This is not an action to restrain alleged unlawful action by state officials * * *. It is rather a suit to coerce state action.” If appellant is not suing the Arizona Supreme Court Justices as private individuals, but as a court performing its duties, then the court is a department of the State of Arizona — a part of the State —and subject to the State’s immunity hereinbefore mentioned. But we are not convinced any such immunity exists if one of three divisions of the State are sued under 28 U.S.C. § 1343, and more particularly subsection (3) alleging a deprivation of a constitutional right. If the Eleventh Amendment were an absolute bar, there would be no jurisdiction in the federal district courts to hear any of the reapportionment cases. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964); Lucas v. Forty-Fourth Gen. Assembly of State of Colo., 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Scott v. Germano, 381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 477 (1965); Silver v. Jordan, 241 F.Supp. 576 (S.D.Calif.1964); Thigpen v. Meyers, 211 F.Supp. 826 (W.D.Wash.1962); Herweg v. Thirty Ninth Leg." }, { "docid": "20617477", "title": "", "text": "county population on a “census division” basis. The 1960 “Johnson City” (31,187), “Johnson City North” (6,266), and “Johnson City Southeast” (6,422) census divisions are substantially equivalent in area to the ninth civil district and, accordingly, these were the components used to approximate the population of the latter. . Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed. 2d 620 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Maryland Comm. v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964). . Johnson v. Genesee County, supra; Simon v. Lafayette Parish Police Jury, 226 F.Supp. 301 (W.D.La.1964). Cf. Blaikie v. Wagner, 258 F.Supp. 364 (S.D.N.Y.1965); Lodico v. Board of Supervisors, 256 F.Supp. 440 (S.D.N.Y.1966). . Gomillion v. Lightfoot, 364 U.S. 339, 344-345, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). WILLIAM E. MILLER, District Judge (concurring): I concur in the conclusions of Judge Gray on all issues. To deny the application of the “one man, one vote” principle to subordinate bodies possessing important legislative functions would be to ignore the reason underlying the principle, i. e., the protection of voting rights against invidious discrimination brought about by state action. Indeed, in many respects the right to vote for members of a local governing body accorded by state law, (such as a quarterly county court under the Tennessee system) may be just as valuable as the right to vote for members of the state legislative assembly. I am unable to find any valid reason why the state should be prohibited from debasing the right to vote for members of a state legislature and yet be free to debase the right to vote for members of agencies as important in our system as the county governing bodies. To be sure, most of the powers of county courts in Tennessee are conferred by" }, { "docid": "5433154", "title": "", "text": "v. Denno, 378 U.S. 368, 385 and 386, 84 S.Ct. 1774, 1785 (1964). . Mr. Justice White noted that “[u]nder the New York rule the judge is not required to exclude the jury while he hears evidence as to voluntariness and perhaps is not allowed to do so.” (citations omitted) Jackson v. Denno, 378 U.S. 368, 377, 84 S.Ct. 1774, 1781, note 7 (1964). See also Malloy v. Hogan, 378 U.S. 1, 6-8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). . See, e. g., Com. ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (Jan. 1, 1965); United States ex rel. Milford v. McMann, 231 F.Supp. 731, 733 (N.D. N.Y.1964); United States ex rel. Petersen v. McMann, 234 F.Supp. 287 (N.D. N.Y.1964); Rudolph v. Holman, 236 F. Supp. 62, 68 and 69 (N.D.Ala.1964). See also Smith v. State of Texas, 236 F.Supp. 857 (S.D.Tex.1964), distinguishing Jackson v. Denno, supra note 39. . The most notable recent examples are Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961). For Mr. Justice Harlan’s dissent to the Supreme Court’s per curiam opinion vacating the ten preGideon convictions, see Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963). For cases giving retroactive effect to the Mapp decision, see the following: California v. Hurst, 325 F.2d 891 (9th Cir. 1963), petition for cert. filed 32 U.S.L.Week 3323 (U.S. March 13, 1964), Hall v. Warden, 313 F.2d 483 (4th Cir. 1963) cert. denied 374 U.S. 809, 83 S.Ct. 1693, 10 L.Ed.2d 1032 (1963); contra, United States ex rel. Linkletter v. Walker, 323 F.2d 11 (5th Cir. 1964), cert. granted 377 U.S. 930, 84 S.Ct. 1340, 12 L.Ed.2d 295 (1964). Gaitan v. United States, 317 F. F.2d 494 (10th Cir. 1962). United States ex rel. Angelet v. Fay, 333 F.2d 12 (2d Cir. June 11, 1964). Linkletter and Walker were set for oral argument before the United States Supreme Court on March 1, 1965, 379 U.S. 955, 85 S. Ct. 639, (Feb. 16, 1965). . For" }, { "docid": "20586736", "title": "", "text": "nom. Reynolds v. Sims, supra. . The Board of Revenue and Control of Houston County, Alabama, is elected pursuant to Act No. 9 of the 1957 Regular Session of the Alabama Legislature. Acts: of Alabama, 1957, Reg.Sess., p. 30. The Board consists of five members, each elected by the qualified electors of the district of which the member must be a resident. Well over half of the county’s population — perhaps as much as 70% at present — resides in District Number 5, the City of Dothan. That District, like each of the other four, has only one representative on the Board. . In the dissenting opinion on the original submission of this cause, this Court stated that: “These boards of revenue perform important governmental functions, and are designed to be controlled by the voters over which they have jurisdiction. The exercise of their powers * * * materially and substantially affects the lives, • property, and welfare of the citizens of Houston and Randolph Counties.” 256 F.Supp. at 201. . At the time of this submission, a full factual record had been developed in earlier proceedings in this cause. . Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 676, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964); see Reynolds v. Sims, supra, 377 U.S. at 585-586, 84 S.Ct. 1362. . Reynolds v. Sims, supra, 377 U.S. at 585, 84 S.Ct. 1362; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 739, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). This responsibility rests with the district court even though the legislature in question may have had an adequate intervening opportunity to correct an unconstitutional scheme of apportionment. Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964). . Davis v. Mann, 377 U.S. 678, 693, 84 S.Ct. 1441, 1449, 12 L.Ed.2d 609 (1964). See Maryland Committee for Fair Representation v. Tawes, supra n. 6; Reynolds v. Sims, supra. . Act No. 9, § 2, n. 3, supra. . In Alabama, the Democratic" }, { "docid": "5117101", "title": "", "text": "Stations “quantitative substantiality” § 3 test to Tampa Electric’s “qualitative substantiality”); American Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d 1230, 1248 (3d Cir. 1975); see also Curly’s Dairy, Inc. v. Dairy Cooperative Association, 202 F.Supp. 481, 484-85 (D.Or.1962); Susser v. Carvel, 332 F.2d 505, 516 (2d Cir. 1964); Manufacturers Hanover at 927 (§§ 1, 7). . United States v. Standard Oil Co., 253 F.Supp. 196 (D.N.J.1966) (Standard Oil) (§ 7); Brown Shoe, 370 U.S. at 303, 334, 82 S.Ct. 1502 (§ 7); see also Kimberly Clark, (2% in alternative national market). . United States v. Kennecott Copper Corp., 231 F.Supp. 95 (S.D.N.Y.1964), aff'd per curiam, 381 U.S. 414, 85 S.Ct. 1575, 14 L.Ed.2d 692 (1965) (Kennecott Copper) (§ 7). . See nn. 25-30, supra. . Brown Shoe, 370 U.S. at 332, 82 S.Ct. 1502; Philadelphia Bank, 374 U.S. at 365 n. 42, 83 S.Ct. 1715; United States v. Continental Can, 378 U.S. 441, 461-62, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964); United States v. Aluminum Co. of America, 377 U.S. 271, 279, 84 S.Ct. 1283, 12 L.Ed.2d 314 (1963); Kennecott Copper; United States v. Chrysler Corp., 232 F.Supp. 651, 656 (D.N.J.1964); Mississippi River at 1091; Manufacturers Hanover at 936, 941. . Kennecott Copper; U. S. Steel v. FTC at 597, 600; Kimberly-Clark at 446; Mississippi River at 1091; Standard Oil at 214, 226. . Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918); Columbia Steel, 334 U.S. at 524, 527, 533, 68 S.Ct. 1107; Kimberly-Clark at 463; Mississippi River at 1091; Chisholm Brothers Farm Equipment Co. v. International Harvester Co., 498 F.2d 1137, 1143 n. 13 (9th Cir. 1974) (Chisholm Brothers). . Columbia Steel, 334 U.S. at 524, 68 S.Ct. 1107; Borman’s, Inc. v. Great Scott Super Markets, Inc., 75-1 TC ¶ 60,321, p. 66, 299 at 66,304 (E.D.Mich.1975); Refrigeration Engineering Corp. v. Frick Co., 370 F.Supp. 702 (W.D.Tex. 1974); Kimberly-Clark at 463. . FTC v. Consolidated Foods Corp., 380 U.S. 592, 594, 85 S.Ct. 1220, 14 L.Ed.2d 95 (1965) (condemning reciprocal buying under § 7 and citing International" }, { "docid": "21478681", "title": "", "text": "U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964) ; Roman v. Simcock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964) ; Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). To the foregoing authorities dealing with legislative apportionment may be added Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (apportionment of congressional districts) and Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) (county-unit system as applied in a statewide election). . Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). . Cases cited in note 5, supra. . Kendrick v. State ex rel. Shoemaker, 256 Ala. 206, 54 So.2d 442 (1951) ; Moore v. Walker County, 236 Ala. 688, 185 So. 175 (1938) ; Montgomery v. State, 228 Ala. 296, 153 So. 394 (1934) ; Askew v. Hale County, 54 Ala. 639 (1875). . 208 F.Supp. 431 (M.D.Ala.1962). . Baker v. Carr, 369 U.S. 186, 235, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). . Ellis v. Mayor and City Council of Baltimore, 234 F.Supp. 945 (D.Md.1964) ; Simon v. Lafayette Parish Police Jury, 226 F.Supp. 301 (W.D.La.1964) ; Bianchi v. Griffing, 217 F.Supp. 166 (E.D.N.Y.1963) ; Brower v. Bronkenia, Cir. Ct. for Kent County, Michigan (Sept. 11, 1964) ; Seaman v. Fedourich, 45 Misc.2d 940, 258 N.Y.S.2d 152 (Sup.Ct.1965) ; Goldstein v. Rockefeller, 45 Misc.2d 778, 257 N.Y.S.2d 994 (Sup.Ct.1965) ; State ex rel. Sonneborn v. Sylvester, 25 Wis.2d 177, 130 N.W.2d 569 (1964). . McMillan v. Wagner, 239 F.Supp. 32 (S.D.N.Y.1964) ; Johnson v. Genesee County, Michigan, 232 F.Supp. 567 (E.D.Mich.1964) ; Tedesco v. Board of Supervisors of Elections for the Parish of Orleans, 43 So.2d 514 (La.Ct.App.1949) ; Glass v. Hancock County Election Comm’n, 250 Miss. 40, 156 So.2d 825 (1963). . Glass v. Hancock County Election Comm'n, 378 U.S. 558, 84 S.Ct. 1910, 12 L.Ed.2d 1035 (1964) (per curiam) ; Tedesco v. Board of Supervisors of Elections for the Parish of Orleans, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357 (1950) (per curiam)." }, { "docid": "6718721", "title": "", "text": "1. The eight largest counties, with 41.26 percent of the state population, now have twenty-one senators, or 40.7 percent of the total. The twenty-two largest counties, with 57.11 percent of the population have 29.5468 senators, or 54.72 percent. The average district should contain 73,021 people based on the population of Georgia. Four out of fifty-four districts are below this average by more than 15 percent while two exceed it by more than 15 percent. Three districts depart from the average by more than 18 percent. Other litigation in Georgia involving the political process, collateral to this suit time-wise, involved the county unit system of elections for governor and United States senators. See Sanders v. Gray, N.D.Ga., 1952, 203 F.Supp. 158, modified and affirmed, 1953, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, where the county unit system of elections was voided with the result that the present governor and one of the United States senators from Georgia have since been elected on the basis of popular vote. The Georgia political process as it related to the election of members of the national House of Representatives also came under attack during this period. See Wesberry v. Vandiver, N.D.Ga., 1962, 206 F.Supp. 276, denying the relief sought, reversed on appeal sub. nom. Wesberry v. Sanders, 1964, 376 U.S. 1, 84 S.Ct. 526,11 L.Ed.2d 481. This case resulted in the redistricting of the ten Georgia congressional districts wherein the maximum population disparity as between them from the average now runs from a low of 16.4 percent below the average to 15.5 percent above the average. The General Assembly of Georgia accomplished this result. Ga. Laws, 1964, p. 478. Shortly thereafter the Supreme Court rendered its decisions in Reynolds v. Sims, 1964, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; WMCA, Inc. v. Lorrenzo, 1964, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for Fair Representation v. Tawes, 1964, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 1964, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sinock, 1964, 377 U.S. 695, 84" }, { "docid": "9654158", "title": "", "text": "proportion in the population. 42 U.S.C. § 1973 (1988). . The district court states that the legislative body responsible for apportionment is frequently named in voting rights cases. Entry and Order at 8. The practice is common but not universal. Compare Smith v. Clinton, 687 F.Supp. 1361 (E.D.Ark.) (three judge court) (members of Board of Apportionment named), aff’d mem., 488 U.S. 988, 109 S.Ct. 548, 102 L.Ed.2d 576 (1988), and Jeffers v. Clinton, 730 F.Supp. 196 (E.D.Ark.1989) (same), and Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (President of Senate, Speaker of House named), with Germano v. Kerner, 241 F.Supp. 715, 723 (N.D.Ill.1965) (no state legislator listed), vacated on other grounds sub nom., Scott v. Germano, 381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 477 (1965). In some cases it is dffricult to tell from the caption in the reporter whether or not a legislative body has been named. Nonetheless, consistent with our discussion infra, the courts in cases without a named legislative representative could have joined an appropriate party had they believed that such a step were necessary. . A potential problem could arise if the court believed that the legislature’s interests were not adequately represented, a finding that does not appear in the district court’s order. However, in view of the options available to the judge discussed below, the proper course would not be to dismiss but to ensure that any unrepresented interests are properly represented through joinder. . The district court appears to recognize this option: [Ejven if a violation of the Voting Rights Act were found, at the very least the General Assembly should be given the first opportunity to correct the deficiency through reapportionment. See Whitcomb v. Chavis, 307 F.Supp. 1362, 1366-67 (S.D.Ind.1969), rev’d on other grounds, 403 U.S. 124 [91 S.Ct. 1858, 29 L.Ed.2d 363] (1971) (court-ordered reapportionment plan instituted only after the legislature failed to act); Reynolds v. Sims, 377 U.S. 533, 586 [84 S.Ct. 1362, 12 L.Ed.2d 506] (1964) (district court should not engage in redrawing district lines until after court finds existing lines unlawful and the" }, { "docid": "19225535", "title": "", "text": "not be at end; it will remain then to determine, if that occurs, whether apathy or even a popular majority can perpetuate or adopt a system that may be found to effect Sub stantial disenfranchisement of voters in local-government elections. Pending such events, the court will retain jurisdiction of the action with leave to the plaintiffs, in the event that an appropriate governing body has not been created for Suffolk County within the permitted standards for representation, to apply for further relief. At this time, it cannot be said that the legislature is unaware of the problem nor, in the light of current court pronouncements, can it now be said that it has failed to act. The motion to dismiss the complaint is denied. An injunction at this time would serve no useful purpose; accordingly, the application therefor is denied without prejudice to renewal. . Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); WMCA Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct 1441, 12 L.Ed.2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964); Lucas v. Forty-Fourth General Assembly of State of Colo., 377 U.S. 713, 84 S.Ct 1459, 12 L.Ed.2d 632 (1964). . 1960 census. . McMillan v. Wagner, 239 F.Supp. 32 (S.D.N.Y., 1964); Ellis v. Mayor and City Council of Baltimore, 234 F.Supp. 945, (D.Md., 1964). . The whole area has been ably and thoroughly discussed by Professor Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Colum.L.Rev. 21 (1965). . Section 7 of Article VII of the Michigan Constitution of 1963 reads: “A board of supervisors shall he established in each organized county eonsisting of one member from each organized township and such representation [representative] from cities as provided by law.” . The five least populous towns having approximately 10% of the county’s population have five supervisors with" }, { "docid": "17124233", "title": "", "text": "education or other lawful purposes. The State itself does not regard the poll tax in this light. The tax is not zealously enforced like other tax measures — the State has no legal authority to collect the tax if a person chooses not to vote. Moreover, even if the State — in this area — had a legitimate interest in raising revenue by taxation, this does not mean that it is justified in this method of collection. The imposition of a poll tax impedes and deters the exercise of the franchise rather than promotes any legitimate state interest by making its exercise costly. Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177 (1965). Just as the imposition of a tax to attend church, or a tax on the right to stand up and voice one’s views on the events of the day would be unconstitutional regulations, so too is a similar imposition on the right to vote. In short, financial ability has no place in a test of voting eligibility and is irrelevant to a determination of who is qualified to vote. For these reasons, the poll tax as a license tax on voting is violative of the due process clause of the Fourteenth Amendment and is therefore constitutionally invalid. . Reynolds v. Sims, supra; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964); Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). See also Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) ; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed. 2d 481 (1964). . United States v. Texas et al., D.C., 252 F.Supp. 234 (February 9,1966), . The six factors which the state asserts justify the imposition of its poll tax are: “(1) Its" }, { "docid": "20617476", "title": "", "text": "permitted under T.C.A. § 19-101. See, e. g., Brown v. Knox County, 187 Tenn. 8, 212 S.W.2d 673, 5 A.L.R.2d 1264 (1948). . The only county cited in illustration of this contention is Davidson County, whose quarterly court, by the adoption of the Charter of Metropolitan Government of Nashville and Davidson County, was practically denuded of power. . See, e. g., Delozier v. Tyrone Area School Board, 247 F.Supp. 30 (W.D.Pa.19651; McMillan v. Wagner, 239 F. Supp. 32 (S.D.N.Y.1964); Ellis v. Mayor and City Council, 234 F.Supp. 945 (D.Md.1964), affirmed, 352 F.2d 123 (4th Cir. 1965); Johnson v. Genesee County, 232 F.Supp. 563 (E.D.Mich.1964). . 1 Acts of Alabama, 1957 Reg.Sess. 30. . This act dealt with the composition of an eleven member county school commission and provided that one member was to be elected from each of eleven school zones of disproportionate population. Priv.Acts Tenn.1943, ch. 426, at 1448, as amended. . The 1960 federal census, unlike that of 1950, does not fragment county population on a civil district basis but rather subdivides total county population on a “census division” basis. The 1960 “Johnson City” (31,187), “Johnson City North” (6,266), and “Johnson City Southeast” (6,422) census divisions are substantially equivalent in area to the ninth civil district and, accordingly, these were the components used to approximate the population of the latter. . Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed. 2d 620 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Maryland Comm. v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964). . Johnson v. Genesee County, supra; Simon v. Lafayette Parish Police Jury, 226 F.Supp. 301 (W.D.La.1964). Cf. Blaikie v. Wagner, 258 F.Supp. 364 (S.D.N.Y.1965); Lodico v. Board of Supervisors, 256 F.Supp. 440 (S.D.N.Y.1966). . Gomillion v. Lightfoot, 364 U.S. 339, 344-345, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct." }, { "docid": "19227959", "title": "", "text": "believe the General Assembly will act with reasonable dispatch. It did so in enacting Senate File 1 which was approved as an interim plan of apportionment by this Court. Adequate time remains. The next general election of members of the General Assembly will not be held until 1966. We are satisfied that it is sufficient for us to now hold that Senate File 1 is prospectively invalid and inoperative for future elee tions to the General Assembly of the State of Iowa. Judgment will be entered accordingly. (The views of District Judge Mc-MANUS, who does not join in this opinion, are stated in his dissenting opinion filed herewith.) . At the hearing plaintiffs withdrew their application for a ruling on the validity of the proposed constitutional plan of apportionment upon the basis that action by the Court on the statutory plan should furnish adequate guidance with respect to the constitutional plan. . Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (Alabama); WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (New York); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (Maryland) ; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1444, 12 L.Ed.2d 609 (Virginia); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (Delaware); Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (Colorado). . See Footnote 2. . For excellent summary see Honsey v. Donovan, 236 F.Supp. 8, 13-15 (D.C. Minn.1964). . 377 U.S. at 735, n. 27, 84 S.Ct. at 1473, the Supreme Court said, “Only after an evaluation of an apportionment plan in its totality can a court determine whether there has been sufficient compliance with the requisites of the Equal Protection Clause. Deviations from a strict population basis, so long rationally justifiable, may be utilized to balance a slight overrepresentation of a particular area in one house with a minor underrepresentation of that area in the other house. But, on the other hand, disparities from population-based representation, though minor, may be" }, { "docid": "5431646", "title": "", "text": "cert. denied 375 U.S. 985, 84 S.Ct. 519, 11 L.Ed.2d 473 (1964); Skolnick v. Spolar, 317 F.2d 857 (7th Cir. 1963), cert. denied 375 U.S. 904, 84 S.Ct. 195, 11 L.Ed.2d 145 (1964); Skolnick v. Martin, 317 F.2d 855 (7th Cir. 1963); Bottone v. Lindsley, 170 F.2d 705 (10th Cir. 1948); Kenney v. Fox, 232 F.2d 288 (6th Cir. 1956); Reinke v. Richardson, 279 F.Supp. 155 (E.D.Wis.1968); Christman v. Commonwealth of Pa., 275 F.Supp. 434 (W.D.Pa.1967); Pritt v. Johnson, 264 F.Supp. 167 (M.D.Pa.1967). . Pugliano v. Staziak, 231 F.Supp. 347 (W.D.Pa.1964), aff’d 345 F.2d 797 (3rd Cir. 1965); Kregger v. Posner, 248 F.Supp. 804 (E.D.Mich.1966). . See Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); Norwood v. Parenteau, 228 F.2d 148 (8th Cir. 1955), cert. denied 351 U.S. 955, 76 S.Ct. 852, 100 L.Ed. 1478 (1956); Mackay v. Nesbett, 285 F.Supp. 498 (D.Alas.1968); Sheridan v. Garrison, 273 F.Supp. 673 (E.D.La.1967); Sarisohn v. Appellate Division, Second Department, Supreme Court of New York, 265 F.Supp. 455 (S.D.N.Y.1967); Brock v. Schiro, 264 F.Supp. 330 (E.D.La. 1967); Stevens v. Frick, 259 F.Supp. 654 (S.D.N.Y.1966), aff’d, 372 F.2d 378 (2d Cir. 1967), cert. denied 387 U.S. 920, 87 S.Ct. 2034, 18 L.Ed.2d 973; Chaffee v. Johnson, 229 F.Supp. 445 (S.D.Miss. 1964), aff’d, 352 F.2d 514 (5th Cir.) cert. denied 384 U.S. 956, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966); Island Steamship Lines v. Glennon, 178 F.Supp. 292 (D.Mass.1959). While the Supreme Court has left the specific question open, see Cameron v. Johnson, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715 (1965); Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116, 14 L.Ed.2d 22, a majority of the circuits have held that 42 U.S.C. § 1983 does not create an exception to 28 U.S.C. § 2283. Baines v. City of Danville, 337 F.2d 579 (4th Cir. 1964) cert. denied, sub. nom. Chase v. McCain, 381 U.S. 939, 85 S.Ct. 1772, 14 L.Ed.2d 702 (1965); Smith v. Village of Lansing, 241 F.2d 856 (7th Cir. 1957); Sexton v. Barry, 233 F.2d 220 (6th Cir. 1956), cert. denied 352" }, { "docid": "6718722", "title": "", "text": "to the election of members of the national House of Representatives also came under attack during this period. See Wesberry v. Vandiver, N.D.Ga., 1962, 206 F.Supp. 276, denying the relief sought, reversed on appeal sub. nom. Wesberry v. Sanders, 1964, 376 U.S. 1, 84 S.Ct. 526,11 L.Ed.2d 481. This case resulted in the redistricting of the ten Georgia congressional districts wherein the maximum population disparity as between them from the average now runs from a low of 16.4 percent below the average to 15.5 percent above the average. The General Assembly of Georgia accomplished this result. Ga. Laws, 1964, p. 478. Shortly thereafter the Supreme Court rendered its decisions in Reynolds v. Sims, 1964, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; WMCA, Inc. v. Lorrenzo, 1964, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for Fair Representation v. Tawes, 1964, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 1964, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sinock, 1964, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; and Lucas v. Colorado General Assembly, 1964, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632, extending the one man-one vote principle established for the election process in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, supra, and followed in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 506, 11 L.Ed.2d 481, supra, to state.legislative representation and apportionment. These decisions, on motion of plaintiffs, activated this phase of the instant litigation for the purpose of requiring reapportionment of the Georgia House of Representatives on the basis of population. The motion of plaintiffs in this regard was granted by an order dated June 30, 1964, and amended on November 3, 1964. The order voided the apportionment section of the Georgia Constitution, Art. Ill, § III, par. 1 (Code Section 2-1501), as conflicting with the Fourteenth Amendment. Georgia Code § 47-101, as amended, giving effect to this section of the Constitution was declared prospectively null and void after the general election to be held in November, 1964. The" }, { "docid": "21423501", "title": "", "text": "ALBERT V. BRYAN, Circuit Judge. Virginia’s 1964 reapportionment of the State into districts for the election of delegates and senators in her General Assembly, following our invalidation of the 1962 redistricting, is here attacked as denying Fourteenth Amendment equal protection of the laws. The assault is made in three separate intervening petitions in the original action, each dealing with a local problem, by certain citizens of Henrico County, the City of Richmond and Shenandoah County. We think only Shenandoah can prevail. Henrico County The grievance asserted by these inter-venors is that Henrico County and Richmond were placed in a single district, No. 36, for representation in the House of Delegates, rather than each made an independent district. Combined, these two political subdivisions were given 8 delegates, but Henrico pleads for 3 delegates of its own, leaving the remaining 5 to Richmond. The injury from the consolidation, according to the county, is that as Richmond has a voting power greater than Henrico, the city will be able to elect all 8 delegates and Henrico will have no representation by its own citizens. This result, says Henrico, is due to a general disregard by the General Assembly of the guide lines and ground rules thus far enunciated for legislative apportionment by the Supreme Court. E. g. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed. 2d 821 (1963); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 598," }, { "docid": "5431647", "title": "", "text": "330 (E.D.La. 1967); Stevens v. Frick, 259 F.Supp. 654 (S.D.N.Y.1966), aff’d, 372 F.2d 378 (2d Cir. 1967), cert. denied 387 U.S. 920, 87 S.Ct. 2034, 18 L.Ed.2d 973; Chaffee v. Johnson, 229 F.Supp. 445 (S.D.Miss. 1964), aff’d, 352 F.2d 514 (5th Cir.) cert. denied 384 U.S. 956, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966); Island Steamship Lines v. Glennon, 178 F.Supp. 292 (D.Mass.1959). While the Supreme Court has left the specific question open, see Cameron v. Johnson, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715 (1965); Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116, 14 L.Ed.2d 22, a majority of the circuits have held that 42 U.S.C. § 1983 does not create an exception to 28 U.S.C. § 2283. Baines v. City of Danville, 337 F.2d 579 (4th Cir. 1964) cert. denied, sub. nom. Chase v. McCain, 381 U.S. 939, 85 S.Ct. 1772, 14 L.Ed.2d 702 (1965); Smith v. Village of Lansing, 241 F.2d 856 (7th Cir. 1957); Sexton v. Barry, 233 F.2d 220 (6th Cir. 1956), cert. denied 352 U.S. 870, 77 S.Ct. 94, 1 L.Ed.2d 76. Contra Cooper v. Hutchinson, 184 F.2d 119 (3rd Cir. 1950). . Oklahoma Packing Co. v. Oklahoma Gas and Electric Co., 309 U.S. 4, 60 S.Ct. 215, 84 L.Ed. 447, 537 (1939); Furnish v. Board of Medical Examiners, 257 F.2d 520 (9th Cir.), cert. denied 358 U.S. 882, 79 S.Ct. 123, 3 L.Ed.2d 111 (1958); H. J. Heinz Co. v. Owens, 189 F.2d 505 (9th Cir. 1951), cert. denied 342 U.S. 905, 72 S.Ct. 294, 96 L.Ed. 677 (1952); Ballard v. Mutual Life Ins. Co. of New York, 109 F.2d 388 (5th Cir. 1940); Javelin Oil Co. v. T. C. Morrow Drilling Co., 266 F.Supp. 119 (W.D.La.1967); Rockefeller v. First Nat’l Bank of Brunswick, 154 F.Supp. 122 (S.D.Ga.1957). As expressed by Judge Nordbye in a related ease [Peterson v. Kane, 4-65 Civ. 91, decided April 9, 1965], “If the state court has erred, plaintiff’s remedy is by way of appeal to the Supreme Court of Minnesota and not by way of a collateral attack on such proceedings in" }, { "docid": "21478680", "title": "", "text": "modified (subject to intervening contractual rights). Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So.2d 487 (1948). . See the discussion in note 1 supra. . 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) . . Prior to 1962, federal courts historically had refused to interfere with the arrangement of internal political subdivisions of the states. In South v. Peters, 339 U.S. 276, at 277, 70 S.Ot. 641, at 642, 94 L.Ed. 834 (1950), in a per curiam opinion, the Supreme Court stated: “Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state’s geographical distribution of electoral strength among its political subdivisions [citing cases].” . Burns v. Richardson, (U.S. 86 S.Ct. 1286, April 25, 1966) ; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.24 568 (1964) ; Maryland Comm. v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964) ; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964) ; Roman v. Simcock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964) ; Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). To the foregoing authorities dealing with legislative apportionment may be added Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (apportionment of congressional districts) and Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) (county-unit system as applied in a statewide election). . Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). . Cases cited in note 5, supra. . Kendrick v. State ex rel. Shoemaker, 256 Ala. 206, 54 So.2d 442 (1951) ; Moore v. Walker County, 236 Ala. 688, 185 So. 175 (1938) ; Montgomery v. State, 228 Ala. 296, 153 So. 394 (1934) ; Askew v. Hale County, 54 Ala. 639 (1875). . 208 F.Supp. 431 (M.D.Ala.1962). . Baker v. Carr, 369 U.S. 186, 235, 82 S.Ct. 691, 7 L.Ed.2d 663" }, { "docid": "17124234", "title": "", "text": "determination of who is qualified to vote. For these reasons, the poll tax as a license tax on voting is violative of the due process clause of the Fourteenth Amendment and is therefore constitutionally invalid. . Reynolds v. Sims, supra; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964); Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). See also Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) ; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed. 2d 481 (1964). . United States v. Texas et al., D.C., 252 F.Supp. 234 (February 9,1966), . The six factors which the state asserts justify the imposition of its poll tax are: “(1) Its payment is a test of good citizenship * * * (2) It keeps out those unworthy voters who have no interest in public affairs. (3) Those who are too inert to pay the small fee required are kept out. (4) The voter’s interest in protecting the ballot * * *. (5) One’s concern for public education for which the poll tax is levied. (6) It tests the citizens’ interest in the conduct of elections.” Brief of State of Alabama, pp. 3-4. Each of these does not need to be specifically dealt with since the principles developed infra have general applicability. . Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965). . “ * * * Nothing in the payment of a poll tax evidences one’s ‘qualification’ to vote. A man with a million dollars in the bank cannot vote if he fails to pay the tax; a man who steals a couple of dollars to pay the tax has met this condition. A poll tax has nothing in common with true" }, { "docid": "21423502", "title": "", "text": "no representation by its own citizens. This result, says Henrico, is due to a general disregard by the General Assembly of the guide lines and ground rules thus far enunciated for legislative apportionment by the Supreme Court. E. g. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed. 2d 821 (1963); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 598, 13 L.Ed. 2d 527 (1965). Our examination of the record discloses no such trespasses or fouls. To demonstrate the correctness of this conclusion, we review the 1964 reapportionment (the Act), touching párticularly upon the features on which Henrico founds its accusations. Ideal representation in the House of Delegates, when Virginia’s total popula tion according to the 1960 census is distributed among its 100 delegates, is 39,669 persons for each member. Richmond had a population of 219,958, Hen-rico 117,339. Applying these figures, it appears that Henrico would be entitled to 2 delegates and wanting but 3,668 residents for a third. Richmond alone could justify 5 delegates, with 21,613 towards a sixth. To have awarded only 5 delegates to Richmond would have meant that each of its delegates represented 43,911, or 4,242 persons in excess of the norm: With Henrico not quite earning 3 dele- ■> gates, but Richmond due more than 5, the solution of the Virginia Assembly was to give the two areas 8 delegates jointly. There would then be 42,164 persons per delegate, a" } ]

[ { "docid": "478187", "title": "", "text": "that would abrogate a regulation having the quality of law. We disagree with taxpayer’s contention that the re-enactment doctrine is applicable here. As has been pointed out in later Supreme Court cases, the doctrine “has been stated in various and not entirely consistent terms.” Helvering v. Griffiths, 318 U.S. 371, 396, 63 S.Ct. 636, 649, 87 L.Ed. 843 (1943). It “is no more than an aid in statutory construction.” Helvering v. Reynolds, 313 U.S. 428, 432, 61 S.Ct. 971, 973, 85 L.Ed. 1438 (1941) ; and that “ [R] e-enactment * * * is an unreliable indicium at best.” Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 477, 99 L.Ed. 483 (1955). The theory underlying this doctrine is that Congress when re-enacting a statute is aware of existing regulations and would, therefore, change the wording of a statute if it intended to eliminate the regulations. Judge Learned Hand in discussing this theory said, “To suppose that Congress must particularly correct each mistaken construction under the penalty of incorporating it into the fabric of the statute appears to us unwarranted; our fiscal legislation is detailed and specific enough already.” F. W. Woolworth Co. v. United States, 91 F.2d 973, 976 (2d Cir.1937), cert, denied, 302 U.S. 768, 58 S.Ct. 479, 82 L.Ed. 597 (1938). If the application of the re-enactment doctrine gave interpretive regulations the force of law without reservation, administrative agencies would lose their power to change previously promulgated rules either retroactively or prospectively. Section 1.162 of the Treasury regulations under the 1954 Code, 26 C.F.R. § 1.162, promulgated in 1958 contains no counterpart to section 39.23 (a)~9 of the 1939 Code regulation. However, section 404 of the 1954 Code, 26 U.S.C. 1958 ed. § 404, and the regulation, adopted in 1956, under this section are pertinent to the question before us. Section 404(a) of the 1954 Code is derived from section 23 (p) of the 1939 Code. Subsections (1), (2), (3), and (4) of section 404(a) are not applicable; but subsection (5) is significant as is section 1.404(a)-12 of the 1954 regulations. We agree with" } ]

[ { "docid": "14697985", "title": "", "text": "Court and supported a position contrary to the Court of Appeals for the 11th Circuit and this Court, essentially, offered the following reasoning: (1) That the handbook in question was something more than a statement of current law, because it contained promises to be relied upon in the future; and (2) that proposed regulations are merely “suggestions made for comment” and are not intended to modify anything. Gehl Co. v. Commissioner, 795 F.2d 1324 (7th Cir. 1986); LeCroy Research Systems Corp. v. Commissioner, 751 F.2d 123 (2d Cir. 1984). Although I agree that proposed regulations do not have the authority or standing of temporary or final regulations, they are regularly used to present the Treasury Department’s position on a particular subject. The purpose for issuing proposed regulations is to put taxpayers on notice and to elicit commentary that may be considered in finalizing the regulation. See sec. 601.601(a) and (b), Procedural Regs. As jurists, we have adhered to the principle that respondent’s revenue rulings and procedures are nothing more than the position of a party and they are afforded little or no weight as authority. Estate of Lang v. Commissioner, 613 F.2d 770, 776 (9th Cir. 1980), affg. on this point 64 T.C. 404 (1975); Stubbs, Overbeck & Assoc. v. United States, 445 F.2d 1142 (5th Cir. 1971); Sims v. United States, 252 F.2d 434 (4th Cir. 1958), affd. 359 U.S. 108 (1959); Minnis v. Commissioner, 71 T.C. 1049, 1057 (1979). The opinions of the Courts of Appeals for the Second and Seventh Circuits have placed proposed regulations below the level afforded revenue rulings and procedures and placed the handbook in the same status as temporary or final regulations. This approach is both divisive and disruptive to a long-established order of significance upon which both taxpayers and Government have long relied. To reiterate, in effect, the Government made no promises to this petitioner or any taxpayer with a taxable year after 1972. The handbook and proposed regulations were published within 9 months of each other during 1972. I find the majority’s position that a proposed regulation is insufficient to put" }, { "docid": "18937381", "title": "", "text": "204 (4th Cir. 2001). Halpern, J., agrees with this dissenting opinion. Applying the doctrine of waiver would have been especially appropriate in the case at hand, where the arguments made in the attachments to petitioners’ amended returns are patently frivolous and have been repeatedly rejected in our published opinions. Petitioners argued that no section of the Internal Revenue Code makes them hable for income taxes on their wages. See United States v. Connor, 898 F.2d 942, 943-944 (3d Cir. 1990) (“Every court which has ever considered the issue has unequivocally rejected the argument that wages are not income”); see also Reading v. Commissioner, 70 T.C. 730 (1978) (entire amount received for services constitutes income), affd. 614 F.2d 159 (8th Cir. 1980); United States v. Richards, 723 F.2d 646, 648 (8th Cir. 1983) (argument that wages and salaries are not income is “totally lacking in merit”). Petitioners argued they owe no taxes because “income” is not separately defined in the Internal Revenue Code, or because the definition of “gross income” in sec. 61 uses the word “income.” Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 429-430 (1955), made clear that the language of sec. 61 is entirely appropriate for “Congress to exert in this field ‘the full measure of its taxing power.’” In Liddane v. Commissioner, T.C. Memo. 1998-259, affd. without published opinion 208 F.3d 206 (3d Cir. 2000), and Fox v. Commissioner, T.C. Memo. 1993-277, affd. without published opinion 69 F.3d 543 (9th Cir. 1995), we found these arguments to be frivolous and imposed a penalty on the taxpayer under sec. 6673(a)(1) for making them. Petitioners’ syllogism that the Supreme Court defines income as corporate profit, and that since wages are not corporate profit he did not have any income, was rejected as frivolous in Ghalardi Income Tax Educ. Found, v. Commissioner, T.C. Memo. 1998-460. Petitioners’ final argument that a penalty under sec. 6702(b) cannot be imposed independently of another penalty because the statute says that “the penalty imposed by subsection (a) shall be in addition to any other penalty provided by law” is textually absurd. These frivolous arguments, combined" }, { "docid": "23141641", "title": "", "text": "payments to be considered as wages. We will consider these arguments in the order named. I Revenue Ruling 59-371 is not Controlling The government argues that Revenue Ruling 59-371, 1959-2 Cum.Bull. 236, has the force and effect of law. We do not agree. A ruling is merely the opinion of a lawyer in the agency and must be accepted as such. It may be helpful in interpreting a statute, but it is not binding on the Secretary or the courts. It does not have the effect of a regulation or a Treasury Decision. Helvering v. New York Trust Co., 292 U.S. 455, 54 S.Ct. 806, 78 L.Ed. 1361 (1934); Biddle v. Commissioner of Internal Revenue, 302 U.S. 573, 58 S.Ct. 379, 82 L.Ed. 431 (1938); Sims v. United States, 4 Cir. 1958, 252 F.2d 434, aff’d. 359 U.S. 108, 79 S.Ct. 641, 3 L.Ed.2d 667 (1959); Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947), and United States v. Bennett, 5 Cir. 1951, 186 F.2d 407. In the case last cited, Chief Judge Hutcheson stated that such a ruling had: * * * [N]o more binding or legal force than the opinion of any other lawyer, * * *. [Id. at 410.] Furthermore, Rev. Ruling 59-371 is not a reasonable interpretation of Section 3401 of the Code which defines “wages” to mean “all remuneration for services performed.” The Ruling arbitrarily says that payments made within a year are not wages, but those made after one year are wages. We find nothing in Section 3401 to support such a construction. We fail to see how payments can be allowable per diem items not subject to withholding one day and be wages subject to withholding the next day. The payments are either wages or not from beginning to end, assuming there is no change in the factual situation other than the passage of time. It would appear that perhaps the drafter of the Ruling did a bit of legislating for the convenience of the IRS. Only Congress has the power to do this. Also, Rev. Ruling 59-371 does" }, { "docid": "3196700", "title": "", "text": "“must give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A., Inc., 467 U.S. at 843-44, 104 S.Ct. 2778. Accordingly, because we hold that § 4252(b)(1) is clear and directly answers the question here, the inquiry ends; we need not give deference to Revenue Ruling 79-404. Moreover, we need not determine the proper level of deference to be given Revenue Ruling 79-404. Am. Bankers, 408 F.3d at 1335 (citations omitted); see also Amtrak, 431 F.3d at 379 (“Even if we were to afford Chevron deference to the ruling, we could not let stand an agency decision that deviates from the statute’s unambiguous meaning.”); OfficeMax, 428 F.3d at 595 (“Even if this circuit gave Chevron deference to revenue rulings, which it does not, this revenue ruling would not clear step one of the Chevron test”) (citations omitted). As discussed above, we conclude that the meaning of the phrase “varies in amount with distance and elapsed transmission time” is clear from the context of § 4252(b)(1) and, therefore, deference need not be afforded to Revenue Ruling 79-404. 3. The Legislative Reenactment Doctrine Even if Revenue Ruling 79-404 is not entitled to deference under Chevron and Mead, the Government contends that the Ruling is nevertheless entitled to “especially great weight” under the legislative reenactment doctrine, because Congress has reenacted the statute several times since the Revenue Ruling was issued in 1979. Appellant’s Br. at 50. Pursuant to the legislative re-enactment doctrine, Congress is “presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978) (citations omitted). As the Court recognized in United States v. Rutherford, 442 U.S. 544, 554 n. 10, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1979), however, “it may not always be realistic to infer approval of judicial or administrative interpretation from congressional silence alone.” Nevertheless, “once an agency’s statutory construction has been ‘fully brought to the attention of the public and the Congress,’ and the latter has not sought to alter" }, { "docid": "2052631", "title": "", "text": "history contains no reference to the subjective concerns which motivate the regulation. Therefore, we conclude that the consolidation regulation is not a reasonable interpretation of the statute and is invalid. Congressional Awareness of Morris Trusts The fact that Congress knew of the Morris Trusts case but did not overrule it deserves emphasis. In Morris Trusts, we rejected the consolidation approach and held that multiple trusts would be respected as separate taxpaying entities. Congress was aware of this decision and concerned with its implications when it passed the 1969 Act, which to a certain extent was a response to Morris Trusts. However, Congress did not alter the status of trusts as separate taxpaying entities nor did it add a tax-avoidance motive provision to the statute. Instead, Congress eliminated some, but not all, of the tax benefits associated with multiple trusts. These facts convince us that Congress decided not to overrule the Morris Trusts holding that multiple trusts would be respected for tax purposes. Therefore, the consolidation regulation is invalid because it goes beyond the statute and exceeds congressional intent in purporting to overrule the Morris Trusts case. It appears that the respondent, after losing in the courts and after failing to persuade Congress to adopt the consolidation approach, enshrined his litigating position as a regulation. We cannot now sanction a position which has already been so thoroughly repudiated. Reenactment Doctrine Respondent argues that Congress tacitly approved the consolidation regulation since it did not overrule the regulation when it reconsidered the multiple trust problem in 1976. We disagree. The 1976 Act shows, even more clearly than the 1969 Act, that Congress intended that multiple trusts would be respected as independent taxpaying entities. Under the legislative reenactment doctrine, \"Treasury regulations and interpretations long continued without substantial change, applying to unámended or substantially reenacted statutes, are deemed to have received congressional approval and have the effect of law.” Helvering v. Winmill, 305 U.S. 79, 83 (1938). See generally Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110 (1939). The legislative reenactment doctrine does not apply to the multiple trust consolidation regulation. The 1976" }, { "docid": "11028617", "title": "", "text": "which are paid or accrued within the taxable year in carrying on a trade or business or an activity described in section 212 (relating to expenses for production of income). [Emphasis added.] This petitioner, like other Rhode Island employees subject to this forced contribution to the State of $72 of his wages in any calendar year, was clearly engaged in carrying on a trade or business as an employee. See David J. Primuth, 54 T.C. 374, 377-381 (1970), and the cases cited therein. Issue 3. Revenue Ruling 75-148 Respondent has deliberately avoided any attempt to support the correctness of Rev. Rul. 75-148. This is not too surprising because it is our firm conviction that the revenue ruling is defective for various reasons. It erroneously holds that employees’ contributions to the Rhode Island temporary disability insurance fund are not \"taxes.” Yet with intrinsic inconsistency it concludes that employers’ (secondary or derivative) contributions to the same fund are \"taxes.” It fails to consider whether the employees’ contributions qualify as State \"income taxes” under section 164(a)(3). It, is plainly inconsistent with respondent’s rulings on foreign tax credits. In concluding that such contributions are nondeductible personal expenses under section 262, it fails to give any attention to the clear holding of this Court — and respondent’s own position — that an employee is engaged in a trade or business. David J. Primuth, supra; and Rev. Rul. 72-463, 1972-2 C.B. 93. In addition, Rev. Rul. 75-148 is fundamentally wrong in its conclusion that employees’ payments under the Rhode Island law are \"similar” to employees’ payments under the New York law. The two laws are entirely different. And, finally, a long-standing administrative interpretation (here two rulings in existence for over 30 years), applying to a substantially reenacted statute, is deemed to have received congressional approval and has the effect of law. See Commissioner v. Noel’s Estate, 380 U.S. 678, 682 (1965); United States v. Correll, 389 U.S. 299, 305-306(1967). All in all, we perceive no sound or rational legal basis for sustaining the validity of Rev. Rul. 75-148. In our judgment the ruling is invalid and," }, { "docid": "4678326", "title": "", "text": "a similar sale consummated after the amended regulation became effective and, at pages 116 and 117 of 306 U.S., at page 426 of 59 S.Ct., 83 L.Ed. 536, said: “Since the legislative approval of existing regulations by reenactment of the statutory provision. to which they appertain gives such regulations the force of law, we think that Congress did not intend to authorize the Treasury to repeal the rule of law that existed during the period for which the tax is imposed. We need not now determine whether, as has been suggested, the alteration of the existing rule, even for the future, requires a legislative declaration or may be shown by reenactment of the statutory provision unaltered after a change in the applicable regulation. As the petitioner [Helvering] points out, Congress has, in the Revenue Acts of 1936 and 1938, retained Section 22(a) of the 1928 Act in haec verba. [26 U.S.C.A. Int.Rev.Code, § 22(a)]. From this it is argued that Congress has approved the amended regulation. It may be that by the passage of the Revenue Act of 1936 the Treasury was authorized thereafter to apply the regulation in its amended form. But we have no occasion to decide this question since we are of opinion that the reenactment of the section, without more, does not amount to sanction of retroactive enforcement of the amendment, in the teeth of the former regulation which received Congressional approval, by the passage of successive Revenue Acts including that of 1928.” Since, as the Supreme Court held, the language of the statutes defining taxable gross income is “so general in its terms as to render an interpretative regulation appropriate,” the rule of reasonableness and Congressional approval by ratification of administrative interpretation and application, as applied in the Reynolds Co. case, gives equal support to the validity of the amended regulation, applied prospectively, as a modification or reversal of the prior regulation as to cases such as we have here. Although the court in the Reynolds case declined to pass upon the question here presented, because it was not there involved, it apparently recognized the" }, { "docid": "8327542", "title": "", "text": "any advanced royalties other than minimum annual royalty payments and that revenue rulings to the contrary were incorrect interpretations of the old regulation. As such, the amendment to the regulation merely constituted a clarification of the prior regulation. We begin by pointing out that the respondent’s revenue rulings are not binding on this Court. In addition, respondent has the power to amend or withdraw a revenue ruling if it is contrary to law. Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184 (1957). See also Dixon v. United States, 381 U.S. 68, 75 (1965). Therefore, the revocation of Rev. Rul. 70-20 and Rev. Rul. 74-214 by the publication on December 19, 1977, of Rev. Rul. 77-489, 1977-2 C.B. 177, was well within the power of respondent. As such, we do not believe that the legislative reenactment doctrine can be applied to bar reasonable amendments to regulations where, as here, the change is made only prospectively from the date of the announcement of the proposed change. See Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. at 116, wherein the Supreme Court applied the doctrine to invalidate a regulation where such regulation was to apply retroactively to periods prior to its promulgation. Furthermore, as we noted supra, the fact that petitioners were aware at the time they entered into the TCR venture of respondent’s intent to revoke the revenue rulings makes us unwilling to give any credence to the argument that petitioners acted in reliance on the interpretation of the old regulation embodied in the revenue rulings. See Manocchio v. Commissioner, 78 T.C. 989 (1982). In fact, the situation smacks more of petitioners rushing in to take advantage of respondent before he can finalize his amendment to the regulations. In addition, we cannot accept the notion that Congress, by its inaction, \"legislatively reenacted” the old regulation. Section 612 was incorporated into the 1954 Code, and section 1.612 — 3(b)(3), Income Tax Regs., initially was promulgated in 1960. T.D. 6446, 1960-1 C.B. 208, 227. The interpretation that such regulation was applicable to advanced lump-sum royalties was not forthcoming until 1970. See" }, { "docid": "8327540", "title": "", "text": "of the offering memorandum for TCR establish that the promoters and investors had actual notice of the fact that the IRS had issued a proposed regulation and were on notice of the intent of the Service to apply the new regulation retroactively. The petitioners herein entered into the transaction with full knowledge that the venture would likely be questioned by the Internal Revenue Service. Accordingly, our sympathy is minimal for petitioners’ argument that the Commissioner acted unreasonably and that they were adversely affected by the retroactivity of the new regulation. Second, petitioners contend that the regulation as amended is invalid because the old regulation was tacitly approved by Congress pursuant to the so-called legislative reenactment doctrine. See generally Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110 (1939). Under such doctrine, \"Treasury regulations and interpretations long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to have received congressional approval and have the effect of law.” Helvering v. Winmill, 305 U.S. 79, 83 (1938). Petitioners argue that the old regulation had been in effect since 1960 during which time Congress enacted numerous amendments to the Code including a number of changes to the sections concerning depletion. They note that Congress failed to make any changes which affected the regulations under section 612. Further, petitioners claim that they acted in accordance with the interpretation of the old regulation that was embodied in Rev. Rul. 70-20 and Rev. Rul. 74-214. Respondent answers by denying that the legislative reenactment doctrine applies in the instant case. First, respondent claims that the last congressional action with respect to section 612 occurred in 1954, yet the interpretation of the old regulation, section 1.612-3(b)(3), Income Tax Regs., that permitted the current deduction of advanced lump-sum royalty payments was not enunciated until 1970. See Rev. Rul. 70-20, 1970-1 C.B. 144. As no affirmative congressional reenactment of section 612 has been undertaken since 1970, he argues that the doctrine cannot apply. Alternatively, even if the legislative reenactment doctrine is found to apply, respondent argues that the old regulation did not permit a deduction for" }, { "docid": "8327541", "title": "", "text": "had been in effect since 1960 during which time Congress enacted numerous amendments to the Code including a number of changes to the sections concerning depletion. They note that Congress failed to make any changes which affected the regulations under section 612. Further, petitioners claim that they acted in accordance with the interpretation of the old regulation that was embodied in Rev. Rul. 70-20 and Rev. Rul. 74-214. Respondent answers by denying that the legislative reenactment doctrine applies in the instant case. First, respondent claims that the last congressional action with respect to section 612 occurred in 1954, yet the interpretation of the old regulation, section 1.612-3(b)(3), Income Tax Regs., that permitted the current deduction of advanced lump-sum royalty payments was not enunciated until 1970. See Rev. Rul. 70-20, 1970-1 C.B. 144. As no affirmative congressional reenactment of section 612 has been undertaken since 1970, he argues that the doctrine cannot apply. Alternatively, even if the legislative reenactment doctrine is found to apply, respondent argues that the old regulation did not permit a deduction for any advanced royalties other than minimum annual royalty payments and that revenue rulings to the contrary were incorrect interpretations of the old regulation. As such, the amendment to the regulation merely constituted a clarification of the prior regulation. We begin by pointing out that the respondent’s revenue rulings are not binding on this Court. In addition, respondent has the power to amend or withdraw a revenue ruling if it is contrary to law. Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184 (1957). See also Dixon v. United States, 381 U.S. 68, 75 (1965). Therefore, the revocation of Rev. Rul. 70-20 and Rev. Rul. 74-214 by the publication on December 19, 1977, of Rev. Rul. 77-489, 1977-2 C.B. 177, was well within the power of respondent. As such, we do not believe that the legislative reenactment doctrine can be applied to bar reasonable amendments to regulations where, as here, the change is made only prospectively from the date of the announcement of the proposed change. See Helvering v. R. J. Reynolds Tobacco Co., 306" }, { "docid": "17351627", "title": "", "text": "were included in the 1973 Senate Report, the only report on the enacted legislation. The question of affirmative intent, however, requires further analysis. While the Supreme Court has declined to hold that reenactment of a statute precluded a subsequent reinterpretation where there was not “the slightest affirmative indication” of such intent, Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 99 L.Ed. 483 (1955), it has been willing in appropriate cases to infer such intent from the legislative history of the subsequent legislation. For example, in United States v. Leslie Salt Co., 350 U.S. 383, 76 S.Ct. 416, 100 L.Ed. 441 (1956), the Commissioner of Internal Revenue sought to apply to certain corporate promissory notes a stamp tax applicable only to “debentures.” Prior to that time, the Commissioner had consistently considered notes of the type in issue not to be “debentures,” and moreover, a similar tax applicable to promissory notes had been repealed by Congress some years earlier. The Court struck down the Commissioner’s reinterpretation of the term, concluding that the Commissioner’s “original interpretation has had both express and implied congressional acquiescence, through the 1918 amendment to the statute . . . and through Congress having let the administrative interpretation remain undisturbed for so many years.” In the present case, the legislative history of the two amendments clearly shows that Congress, well aware of the Commission’s longstanding and unquestioned interpretation of the custom-of-thetradé provision, expressly rejected the Commission’s repeated pleas that the provision be repealed. Congress thus not only expressed its satisfaction with the prior interpretation, but affirmatively concluded that it should not be changed for the time being, whether to assure that particular commodi ties continued to be regulated or simply to avoid too quickly making changes in the regulation of water carriers. On the basis of this legislative history, we conclude that Congress in 1970 and 1973 affirmatively intended to adopt the Commission’s well established interpretation of that provision. The Commission was thus precluded in 1975 from radically changing its interpretation of that provision. IV. In the alternative, we conclude that the proper meaning of" }, { "docid": "3196701", "title": "", "text": "79-404. 3. The Legislative Reenactment Doctrine Even if Revenue Ruling 79-404 is not entitled to deference under Chevron and Mead, the Government contends that the Ruling is nevertheless entitled to “especially great weight” under the legislative reenactment doctrine, because Congress has reenacted the statute several times since the Revenue Ruling was issued in 1979. Appellant’s Br. at 50. Pursuant to the legislative re-enactment doctrine, Congress is “presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978) (citations omitted). As the Court recognized in United States v. Rutherford, 442 U.S. 544, 554 n. 10, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1979), however, “it may not always be realistic to infer approval of judicial or administrative interpretation from congressional silence alone.” Nevertheless, “once an agency’s statutory construction has been ‘fully brought to the attention of the public and the Congress,’ and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned.” Id.; see also North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 535, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). In this case, the Government points to legislative history in which the Congress seems to equate “toll telephone service” with “long-distance,” but fails to identify any evidence that Congress was aware of Revenue Ruling 79-404. We therefore cannot find that the construction has been “fully brought to the attention” of Congress. Moreover, even if we presume that Congress was aware of Revenue Ruling 79-404, the Supreme Court has held that “where the law is plain, subsequent reenactment does not constitute an adoption of a previous administrative construction.” Browm v. Gardner, 513 U.S. 115, 121, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). Given the ordinary meaning of the word “and” and the structure and context of § 4252, we view the law as “plain” and conclude that the legislative re-enactment doctrine does not apply in" }, { "docid": "14697986", "title": "", "text": "and they are afforded little or no weight as authority. Estate of Lang v. Commissioner, 613 F.2d 770, 776 (9th Cir. 1980), affg. on this point 64 T.C. 404 (1975); Stubbs, Overbeck & Assoc. v. United States, 445 F.2d 1142 (5th Cir. 1971); Sims v. United States, 252 F.2d 434 (4th Cir. 1958), affd. 359 U.S. 108 (1959); Minnis v. Commissioner, 71 T.C. 1049, 1057 (1979). The opinions of the Courts of Appeals for the Second and Seventh Circuits have placed proposed regulations below the level afforded revenue rulings and procedures and placed the handbook in the same status as temporary or final regulations. This approach is both divisive and disruptive to a long-established order of significance upon which both taxpayers and Government have long relied. To reiterate, in effect, the Government made no promises to this petitioner or any taxpayer with a taxable year after 1972. The handbook and proposed regulations were published within 9 months of each other during 1972. I find the majority’s position that a proposed regulation is insufficient to put the public on notice to be simply incorrect. For the foregoing reasons, I respectfully dissent from the majority’s opinion. Although one might make that argument, it is a matter of judgment and would appear to be a close call. In this regard, we have already taken a position on this aspect in CWT Farms, Inc. v. Commissioner, 79 T.C. 1054 (1982), and numerous Memorandum Opinions. In close situations, such as this one, we have a duty of consistency and should not change our opinion or judgment unless it is clearly wrong. RUWE, J., dissenting: For the following reasons, I do not agree with the majority’s holding that petitioner, a former DISC, was the proper taxpayer with respect to income attributed to it for the year 1977. The majority opinion is based on a concern that were we to find petitioner totally lacking in substance, this “would, in effect, be calling a DISC a sham corporation” and thus undermine the purpose of the DISC legislation. Majority opinion at p. 1221. We need not be concerned with" }, { "docid": "8327543", "title": "", "text": "U.S. at 116, wherein the Supreme Court applied the doctrine to invalidate a regulation where such regulation was to apply retroactively to periods prior to its promulgation. Furthermore, as we noted supra, the fact that petitioners were aware at the time they entered into the TCR venture of respondent’s intent to revoke the revenue rulings makes us unwilling to give any credence to the argument that petitioners acted in reliance on the interpretation of the old regulation embodied in the revenue rulings. See Manocchio v. Commissioner, 78 T.C. 989 (1982). In fact, the situation smacks more of petitioners rushing in to take advantage of respondent before he can finalize his amendment to the regulations. In addition, we cannot accept the notion that Congress, by its inaction, \"legislatively reenacted” the old regulation. Section 612 was incorporated into the 1954 Code, and section 1.612 — 3(b)(3), Income Tax Regs., initially was promulgated in 1960. T.D. 6446, 1960-1 C.B. 208, 227. The interpretation that such regulation was applicable to advanced lump-sum royalties was not forthcoming until 1970. See Rev. Rui. 70-20,1970-1 C.B. 144. Clearly, Congress could not have been aware of the regulation until it came into being in 1960, and of the interpretation here in issue until 1970. As section 612 was not amended during this period, and Congress never even undertook an examination of the regulation or the interpretation thereof espoused in the 1970 revenue ruling, we cannot agree that the legislative reenactment doctrine is applicable. Finally, even if the legislative reenactment doctrine were to apply, we believe that it is not unreasonable to read the old regulation as applying only to advanced minimum annual royalty payments and not to the advanced lump-sum royalties here in issue. Accordingly, respondent properly revoked the two revenue rulings that extended the coverage of the old regulation to the payment of advanced lump-sum royalties and clarified the regulation by his amendments that are embodied in the new regulation. We hold for respondent. Next, we turn to the second issue raised by the parties: whether the advanced royalty deduction allowable to TCR should be limited to" }, { "docid": "23587988", "title": "", "text": "give deference to Revenue Ruling 79-404. Moreover, we need not determine the proper level of deference to be given Revenue Ruling 79-404. See Wilderness Watch v. Mainella, 375 F.3d 1085, 1091 n. 7 (11th Cir.2004) (noting “[bjecause [the court] hold[s] that the Wilderness Act speaks directly to the question at issue, we need not resolve the question of the precise level of deference due the agency action under the second prong of Chevron’’). 3. Re-enactment Doctrine is not applicable The government contends. that even if Revenue Ruling 79-404 is not entitled to deference, under the re-enactment doctrine, Congress should be deemed to have approved the Revenue Ruling because the- federal communications excise tax imposed under § 4251 has been amended and re-enacted since the publication of Revenue Ruling 79-404. However, the re-enactment doctrine will serve to give weight or approval to an agency interpretation only “[w]here an agency’s statutory construction has been fully brought to the attention of the public and the Congress, and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been discerned.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 535, 102 S.Ct. 1912, 1925, 72 L.Ed.2d 299 (1982) (quotations omitted). Here, not only is the statutory language clear under § 4252(b)(1), but there is nothing to indicate that Congress was aware of Revenue Ruling 79-404 when it subsequently amended and re-enacted this taxing statute. The legislative history reveals no mention of Revenue Ruling 79-404 nor does the record reveal consideration of the issue raised in the Ruling. See, e.g., Office Max, 309 F.Supp.2d at 1004-1005. Thus, there is nothing to indicate Congress was aware of Revenue Ruling 79-404 when the taxing provisions were re-enacted. See id. “When the ‘congressional discussion preceding re-enactment makes no reference to the ... regulation, and there is no other evidence to suggest that Congress was even aware of the ... interpretive position!,] ‘we consider the ... reenactment to be without significance.’ ” America Online, 64 Fed.Cl. at 580-81 (quoting Brown v. Gardner, 513 U.S." }, { "docid": "17351626", "title": "", "text": "history of any intent to alter the meaning of the custom-of-the-trade provision. III. The legislative history of the 1970 and 1973 amendments, which left the 1940 Act’s custom-of-the-trade provision intact, thus reveals that Congress did not intend thereby to change the meaning of that provision. Petitioner and intervenor further contend that in reenacting this provision without change, Congress has precluded a subsequent change in the administrative interpretation of that provision. The Supreme Court has indicated that in order to bring this “doctrine of reenactment” into play, Congress must not only have been made aware of the administrative interpretation, but must also have given some “affirmative indication” of such intent. The legislative history of the two amendments, discussed in the previous part of this opinion, leaves no doubt that Congress was well aware of the Commission’s longstanding interpretation of the custom-of-the-trade provision. Both the Commission and the Department of Transportation, in their numerous communications with the Senate and House committees and subcommittees, repeatedly described this undisputed interpretation. The comments of both the Commission and the Department were included in the 1973 Senate Report, the only report on the enacted legislation. The question of affirmative intent, however, requires further analysis. While the Supreme Court has declined to hold that reenactment of a statute precluded a subsequent reinterpretation where there was not “the slightest affirmative indication” of such intent, Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 99 L.Ed. 483 (1955), it has been willing in appropriate cases to infer such intent from the legislative history of the subsequent legislation. For example, in United States v. Leslie Salt Co., 350 U.S. 383, 76 S.Ct. 416, 100 L.Ed. 441 (1956), the Commissioner of Internal Revenue sought to apply to certain corporate promissory notes a stamp tax applicable only to “debentures.” Prior to that time, the Commissioner had consistently considered notes of the type in issue not to be “debentures,” and moreover, a similar tax applicable to promissory notes had been repealed by Congress some years earlier. The Court struck down the Commissioner’s reinterpretation of the term, concluding that the Commissioner’s" }, { "docid": "20732005", "title": "", "text": "respect, for Congress has delegated to the Secretary of the Treasury, not to this Court, the task “of administering the tax laws of the Nation.” United States v. Cartwright, 411 U.S. 546, 550 (1973); accord, United States v. Correll, 389 U.S. 299, 307 (1967); see 26 U.S.C. sec. 7805(a). We therefore must defer to Treasury Regulations that “implement the congressional mandate in some reasonable manner.” United States v. Correll, supra at 307; accord, National Muffler Dealers Assn. v. United States, 440 U.S. 472, 476-477 (1979). To put the same principle conversely, Treasury Regulations “must be sustained unless unreasonable and plainly inconsistent with the revenue statutes.” Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501 (1948); accord, Fulman v. United States, 434 U.S. 528, 533 (1978); Bingler v. Johnson, 394 U.S. 741, 749-751 (1969). * * * [Commissioner v. Portland Cement Co. of Utah, 450 U.S. 156, 169 (1981).] Respondent characterizes the regulations in issue as “legislative,” i.e., emanating from a specific congressional grant of authority and not merely from the Treasury’s general rule-making power under section 7805(a), a characterization which we shall assume correct for purposes of our decision. Moreover, the regulations were issued soon after enactment of the statutory provisions and have survived numerous amendments to section 170(e). Although we have found no indication that Congress subsequently approved, or even considered, the aspect of these long-standing regulations that is in issue herein, the regulations are entitled to the highest standard of deference. See, e.g., United States v. Vogel Fertilizer Co., 455 U.S. 16, 24 (1982) (legislative regulation entitled to greater deference); Watt v. Alaska, 451 U.S. 259, 272-273 (1981) (contemporaneous interpretation by administrative agency that proposed the legislation); United States v. Correll, 389 U.S. 299, 305-306 (1967) (legislative reenactment doctrine). However limited our standard of review, a regulation nevertheless is not valid unless it is reasonable and consistent with the statute’s plain language, origin, and purpose. National Muffler Dealers Association, Inc. v. United States, 440 U.S. 472, 477 (1979). As we stated in State of Washington v. Commissioner, 11 T.C. 656, 675-676 (1981), affd. 692 F.2d 128 (D.C." }, { "docid": "12652792", "title": "", "text": "are limits to that presumption — particularly where, as here, knowledge of the program was intentionally kept to a minimum, both within Congress and among the public. We have said that, at least in the case of an administrative interpretation of a statute, for the doctrine of legislative ratification to apply, we must first “ascertain whether Congress has spoken clearly enough to constitute acceptance and approval of an administrative interpretation. Mere reenactment is insufficient.” Isaacs v. Bowen, 865 F.2d 468, 473 (2d Cir.1989). In Atkins v. Parker, the Supreme Court applied the doctrine of legislative ratification where “Congress was ... well aware of, and legislated on the basis of, ... contemporaneous administrative practice,” concluding that it therefore “must be presumed to have intended to maintain that practice absent some clear indication to the contrary.” 472 U.S. 115, 140, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985). In contrast, in a situation in which “there [wa]s nothing to indicate that [the interpretation of a regulation] was ever called to the attention of Congress,” and the statute’s reenactment “was not accompanied by any congressional discussion which throws light on its intended scope,” the Court has “consider[ed] the ... re-enactment to be without significance.” United States v. Calamaro, 354 U.S. 351, 359, 77 S.Ct. 1138, 1 L.Ed.2d 1394 (1957); see also Comm’r v. Glenshaw Glass Co., 348 U.S. 426, 431, 75. S.Ct. 473, 99 L.Ed. 483 (1955) (“Re-enactment [of a statute] — particularly without the slightest affirmative indication that Congress ever had [a particular] decision before it — is an unreliable indicium at best.”). Third, as the above precedents suggest, the public nature of an interpretation plays an important role in applying the doctrine of legislative, ratification. The Supreme Court has stated that “[w]here an agency’s statutory construction has been fully brought to the attention of the public and the Congress, and the latter has not sought to alter that interpretation al though it has amended the statute in other respects, then presumably the legislative intent has been' correctly discerned.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 535, 102 S.Ct. 1912," }, { "docid": "93708", "title": "", "text": "the agency interpretation, it reenacts the statute without significant change.” (emphasis added)). Instead, the dissent merely assumes that Congress was aware of some BIA and AAO decisions when reenacting § 1155. As we have discussed, there is no basis for making such an assumption here. Cf. Ze nith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 336 n. 7, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (“[The respondent] can point to no direct evidence that Congress ever considered the issue now before us or voiced any views upon it; on the contrary, it appears that Congress left the matter for authoritative resolution in the courts.”); Zuber v. Allen, 396 U.S. 168, 185 n. 21, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969) (“Where, as in the ease before us, there is no indication that a subsequent Congress has addressed itself to the particular problem, we are unpersuaded that silence is tantamount to acquiescence, let alone the approval discerned by the dissent.”). Absent evidence Congress was aware of the administrative interpretations, it is significant that we lack any affirmative indication from Congress that it intended to ratify these interpretations. We have explained that it is generally inappropriate to apply the doctrine of legislative ratification without some evidence that Congress affirmatively sought to ratify the interpretation of a statute — particularly when, as here, an ambiguous term lacks a widely accepted meaning and we lack any indication that Congress was even aware of the administrative interpretation suggested. In Molina v. INS, in an opinion written by then-Chief Judge Breyer, we explained that “Congressional reenactment of statutory language does not normally or automatically indícate a legislative intent to freeze all pre-existing agency interpretations of language, forever after immunizing them from change.” 981 F.2d 14, 23 (1st Cir.1992); see also ACLU v. Clapper, 785 F.3d 787, 819 (2d Cir.2015) (“[I]n the case of an administrative interpretation of a statute, for the doctrine of legislative ratification to apply, we must first ‘ascertain whether Congress has spoken clearly enough to constitute acceptance and approval of an administrative interpretation. Mere reenactment is insufficient.’ ” (quoting Isaacs v." }, { "docid": "11028618", "title": "", "text": "plainly inconsistent with respondent’s rulings on foreign tax credits. In concluding that such contributions are nondeductible personal expenses under section 262, it fails to give any attention to the clear holding of this Court — and respondent’s own position — that an employee is engaged in a trade or business. David J. Primuth, supra; and Rev. Rul. 72-463, 1972-2 C.B. 93. In addition, Rev. Rul. 75-148 is fundamentally wrong in its conclusion that employees’ payments under the Rhode Island law are \"similar” to employees’ payments under the New York law. The two laws are entirely different. And, finally, a long-standing administrative interpretation (here two rulings in existence for over 30 years), applying to a substantially reenacted statute, is deemed to have received congressional approval and has the effect of law. See Commissioner v. Noel’s Estate, 380 U.S. 678, 682 (1965); United States v. Correll, 389 U.S. 299, 305-306(1967). All in all, we perceive no sound or rational legal basis for sustaining the validity of Rev. Rul. 75-148. In our judgment the ruling is invalid and, in fairness to thousands of Rhode Island employees, it should be revoked immediately. To let linger the uncertainty created by respondent’s inaction would show a careless and callous disregard of the rights of these individuals. They seek a definitive answer. They are entitled to have it. Accordingly, we will grant petitioners’ motion for summary judgment. An appropriate order and decision will be entered. All statutory references herein pertain to the Internal Revenue Code of 1954, as amended, unless otherwise indicated. Sec. 28-39-38 of the Rhode Island law declares its purpose as \"to lighten the burden which now falls on the unemployed worker and his family.”" } ]

[ { "docid": "674361", "title": "", "text": "and five years in prison for his efforts to furnish Mr. Rutherford his 1975 supply of laetrile. The writer says that the clinic cannot be responsible and that therefore there will be no more mail orders of laetrile in the future. The Court finds that the plaintiff Rutherford is not free to have shipped to him, nor is he free to directly purchase and bring back to the United States from Mexico quantities of laetrile for preventative treatment of his cancer. To do so would violate the law and would subject him to criminal prosecution. 21 U.S.C. § 355 provides: “(a) No person shall introduce or deliver for introduction into interstate commerce any new drug, unless an approval of an application filed pursuant to subsection (b) of this section is effective with respect to such drug.” In this connection the Court finds that laetrile has been in use for a number of years in Mexico and other nations around the world; that the FDA has by its regulations made it impossible for the common man to have an application processed through FDA so that said agency would either approve or disapprove the drug known as laetrile. The Court finds that Congress intended by 21 U.S.C. § 355 that the FDA would on its own initiative and in good faith approve or disapprove the use of laetrile, thereby allowing the courts jurisdiction of the subject matter. The Court finds that the FDA has abdicated its duty to make a clear determination of whether the drug laetrile should or should not be placed in commerce though the drug has been in use for many years and thousands of persons have been treated with it. The Court finds from the record, testimony and exhibits that laetrile is not lethal in any sense of the word. It is not harmful to the human body and when used in proper amounts under proper control and supervision can effect relief from cancer disease to the satisfaction of many who are privileged to use the same. The Court further finds from the record that the plaintiff Rutherford" } ]

[ { "docid": "3846651", "title": "", "text": "ANDA in a decision dated February 8, 1979 (Docket No. 77N-0145). Both parties have filed exceptions with the FDA Commissioner. Meanwhile, in March of 1977, Tutag filed an NDA for X-Otag Plus, but this has never been approved. Prior to filing either an ANDA or an NDA, Tutag shipped XOtag Plus in interstate commerce. (Although both 21 U.S.C. § 331(a) and § 334(a)(1) prohibit misbranded drugs, the parties stipulated that, if X-Otag Plus is not a “new drug,” it need not have an approved NDA or ANDA and is not misbranded.) The district court found inter alia: (1) The production of an administrative record supporting the FDA’s contention that XOtag Plus is a “new drug” is not required for the court to determine matters before it in condemnation and injunction proceedings; and (2) The Government had shown, by a preponderance of the evidence, that X-Otag Plus is a “new drug” within the meaning of 21 U.S.C. § 321(p)(l) for purposes of the condemnation and injunction proceedings. Technically, the latter was a finding that FDA had probable cause to believe that X-Otag Plus was a “new drug.” Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950). See CIBA Corp. v. Weinberger, 412 U.S. 640, 93 S.Ct. 2495, 37 L.Ed.2d 230 (1973). OPINION Tutag argues that under Rutherford v. United States, 542 F.2d 1137 (10th Cir. 1976), the district court should have remanded the case to FDA for development of an administrative record in support of FDA’s contention that X-Otag Plus is a new drug. In Rutherford, FDA had refused to allow the shipment or distribution of laetrile on the ground that it was a “new drug,” even though there was no NDA on file with the FDA and there had been no formal determination of whether laetrile was a new drug. Plaintiffs, a class of terminally ill cancer patients, who were without the means, by themselves, to undertake an FDA proceeding, sought an injunction against the FDA’s action. This court remanded the case to FDA for development of an administrative record. Especially to be" }, { "docid": "674362", "title": "", "text": "to have an application processed through FDA so that said agency would either approve or disapprove the drug known as laetrile. The Court finds that Congress intended by 21 U.S.C. § 355 that the FDA would on its own initiative and in good faith approve or disapprove the use of laetrile, thereby allowing the courts jurisdiction of the subject matter. The Court finds that the FDA has abdicated its duty to make a clear determination of whether the drug laetrile should or should not be placed in commerce though the drug has been in use for many years and thousands of persons have been treated with it. The Court finds from the record, testimony and exhibits that laetrile is not lethal in any sense of the word. It is not harmful to the human body and when used in proper amounts under proper control and supervision can effect relief from cancer disease to the satisfaction of many who are privileged to use the same. The Court further finds from the record that the plaintiff Rutherford herein and those similarly situated have been denied this right of choice in using B17 or laetrile without just cause on the part of the Secretary of HEW and its agency FDA. Inaction by the FDA constitutes the crux of plaintiff’s procedural dilemma, and the question arises relevant to plaintiff’s request for equitable relief, as to whether an interpretation or contruetion of § 355 authorizes such inaction and is in keeping with the Congressiraal intent the statute embodies. Section 355 states in part: “(c) Within one hundred and eighty days after the filing of an epplication . . . the Secretary shall either_ (1) approve the application . or (2) give . . . notice of an opportunity for a hearing (d) If the Secretary finds, after due notice to the applicant . . . that (1) the investigations ... do not include adequate tests . . .; (2) the results . . . show that such drug is unsafe . . . or do not show that such drug is safe . . ." }, { "docid": "22002729", "title": "", "text": "Laetrile has been approved, but plaintiffs challenge the Commissioner’s categorization of Laetrile as a “new drug.” Plaintiffs initially question the determination that Laetrile is a drug, contending instead that it is a vitamin or food. “Drug” is defined to include “articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals . . . .” 21 U.S.C. § 321(g)(1)(B). The court need not rule whether Laetrile is a food or a vitamin, since, in any event, its well-recognized use in the treatment of cancer renders it a drug within the context of the statutory definition. Ill THE “GENERALLY RECOGNIZED . . . AS SAFE AND EFFECTIVE” ISSUE If Laetrile’s composition is such that it is generally recognized among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use in the treatment of cancer, it is not a “new drug” within the Act’s meaning and not subject to the asserted FDA regulation. 21 U.S.C. § 321(p)(l). Unquestionably, the administrative record in this case reveals a substantial and well-developed controversy among medical professionals and other scientists as to the efficacy of Laetrile. Advocates of Laetrile’s use in cancer treatment include many highly educated and prominent doctors and scientists whose familiarity and practical experience with the substance vastly exceeds that of their detractors. To deem such advocacy “quackery” distorts the serious issues posed by Laetrile’s prominence and requires disregarding considerable expertise mustered on the drug’s behalf. While the record reveals an impressive consensus among the nation’s large medical and cancer-fighting institutions as to Laetrile’s ineffectualness, a disconcerting dearth of actual experience with the substance by such detractors is revealed. Special problems, medical, legal and philosophical, arise when applying the “generally recognized as safe and effective” standards of the Act to drugs employed in the treatment of cancer. There are many thousands of terminally ill cancer patients each year whose diseases have progressed to a point where, for them, no drug exists which can fairly be termed “generally recognized as safe and effective.” These are" }, { "docid": "13940450", "title": "", "text": "WILLIAM E. DOYLE, Circuit Judge. The Department of Health, Education and Welfare here seeks review and reversal of a judgment of the District Court for the Western District of Oklahoma which temporarily enjoined the Department, and particularly the Food and Drug Administration, from preventing appellee Rutherford from obtaining a supply of a controversial cancer drug called Laetrile for his own use. An order was issued on behalf of Rutherford which allowed him to purchase and transport in commerce a six months’ supply of Laetrile and accompanying drugs. In the course of this order the trial court found that Laetrile was not toxic and further found that if properly administered it would “effect relief from cancer disease to the satisfaction of many who are privileged to use the same.” The court also ruled that the FDA was required under the law to approve or disapprove Laetrile as a cancer treatment and that it had neglected its duty in this regard. The judge also held that the new drug application requirements contained in the Food and Drug Act, Section 505(b), 21 U.S.C. Section 355(b), violated the Fifth Amendment due process clause in that they prescribed expensive procedures which could not be carried out by persons in the position of Rutherford. The government seeks reversal on statutory grounds: First, that it (FDA) has no duty to approve a new drug unless a so-called new drug application is submitted to it. Second, that it is not empowered to determine the safety and efficiency of Laetrile. Third, that the court exceeded its authority in issuing the injunction, the effect of which was to block the enforcement of an Act of Congress without convening a three-judge court, 28 U.S.C. Sections 2282 and 2284. We need not review the judge’s ruling that Laetrile is an effective treatment for cancer or that Laetrile is not toxic or that the new drug application provision is unconstitutional. We confine ourselves to the issue whether the so-called new drug procedure constitutes, as H.E.W, contends, the only legal route that is available for testing the drug for harmfulness or harmlessness. So considered," }, { "docid": "7538414", "title": "", "text": "are “new drugs” within the meaning of 21 U.S.C. § 321(p), and that the plaintiffs’ conduct is unlawful under 21 U.S.C. § 355(a) because the Food and Drug Administration [FDA] has not approved a new drug application with respect to the drug; indeed, say the defendants, no new drug application has ever been filed in accordance with 21 U.S.C. § 355(b). Because of their view that the importation and distribution of laetrile vials and tablets in interstate commerce is prohibited, Federal authorities obtained search warrants on December 23, 1975, for the plaintiffs’ residences. Several items were seized in the execution of those warrants, including a quantity of the product laetrile. On January 9, 1976, the plaintiffs were indicted by the Grand Jury for the Southern District of California on charges of smuggling vials and tablets of laetrile, in violation of 18 U.S.C. §§ 371 and 545. That criminal prosecution is currently pending. The plaintiffs do not deny that there is no approved new drug application with respect to the laetrile tablets and vials. They argue, however, that the tablets and vials are not a drug, are not “new drugs” within the meaning of the Act, and are not subject to restriction by the FDA. In this action, commenced on January 8, 1976, the plaintiffs seek injunctive relief along the following lines: (1) An Order requiring that all items seized from the plaintiffs pursuant to the search warrants issued on December 23, 1975, be returned, and that no further search warrant be applied for against the plaintiffs without this Court’s order. (2) An Order enjoining all criminal prosecutions of whatsoever nature, for importing laetrile or selling it, and requiring this Court’s authorization before any such proceeding may be commenced. (3) A declaratory judgment that laetrile is a food, is not a new drug, is not prohibited in interstate commerce, is not harmful or toxic, that plaintiffs’ source is not adulterated or mislabeled, and that the plaintiffs have the right to import it and the public has a right to use it. (4) An Order decreeing that no agency of the United" }, { "docid": "13940451", "title": "", "text": "Act, Section 505(b), 21 U.S.C. Section 355(b), violated the Fifth Amendment due process clause in that they prescribed expensive procedures which could not be carried out by persons in the position of Rutherford. The government seeks reversal on statutory grounds: First, that it (FDA) has no duty to approve a new drug unless a so-called new drug application is submitted to it. Second, that it is not empowered to determine the safety and efficiency of Laetrile. Third, that the court exceeded its authority in issuing the injunction, the effect of which was to block the enforcement of an Act of Congress without convening a three-judge court, 28 U.S.C. Sections 2282 and 2284. We need not review the judge’s ruling that Laetrile is an effective treatment for cancer or that Laetrile is not toxic or that the new drug application provision is unconstitutional. We confine ourselves to the issue whether the so-called new drug procedure constitutes, as H.E.W, contends, the only legal route that is available for testing the drug for harmfulness or harmlessness. So considered, we are of the opinion that the question whether this is a new drug presents a mixed question of fact and law which should be fully tried. As it is, the FDA’s record is grossly inadequate and consists merely of a conclusory affidavit of an official of the FDA which in effect declares that it. is a new drug because the FDA says it is and thus is subject to all of the statutory vagaries of such a designation. I. As we view it, the reason that the Food and Drug Administration is anxious to classify Laetrile as a new drug is so as to bring it within the new drug certification procedures of the Food, Drug and Cosmetics Act. Section 505(a) of the Act, 21 U.S.C. Section 355(a). This provision bars the introduction into interstate commerce of a new drug without an approved new drug application having been filed pursuant to the Act just cited. The Secretary is required to review the application within a specified period on the criteria of safety and effectiveness" }, { "docid": "22002727", "title": "", "text": "collecting necessary facts is abusive of discretion. Xytex Corporation v. Schliemann, 382 F.Supp. 50, 53 (D.Colo.1974). After collecting the facts, the appropriate legal standards must be applied. If administrative construction of a statute is clearly wrong, it is the ,court’s duty to correct. R. V. McGinnis Theatres and Pay T.V. v. Video Independent Theaters, 386 F.2d 592, 594 (10th Cir. 1967), cert. denied, 390 U.S. 1014, 88 S.Ct. 1265, 20 L.Ed.2d 163 (1968). Administrative regulations must be consistent with the statute’s purposes and reasonably adapted to carry out those purposes. Greyhound Corporation v. United States, 221 F.Supp. 440, 444 (N.D.Ill.1963). Having reviewed the Decision of the Commissioner of Food and Drugs on Laetrile, dated July 29, 1977, (42 Fed.Reg. 39768-39806 (1977)), and the entire administrative record upon which that decision was based, and the pleadings and briefs, the court concludes that such decision is arbitrary, capricious, that it represents an abuse of discretion and is not in accordance with law. Consequently, it must be set aside and vacated. 5 U.S.C. § 706(2). ISSUES The following issues are presented: 1. Is Laetrile a drug? 2. Is Laetrile a “new drug” within the meaning of § 201(p) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 321(p) in that it is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use in the cure, mitigation, treatment, or prevention of cancer in ■man, and in that it is not “grandfathered” by one of the Act’s provisions applicable to those drugs marketed before the current “new drug” statutory provision became effective? 3. Is the agency action in question violative of plaintiffs’ constitutional rights? II NEW DRUG ISSUE FDA asserts authority to preclude Laetrile’s importation or interstate transportation on the basis that it is a “new drug” within the Act’s meaning. “No person shall introduce or deliver for introduction into interstate commerce any new drug,” unless an application on its behalf has been approved. 21 U.S.C. § 355(a). It is conceded that no such application in regard to" }, { "docid": "20353921", "title": "", "text": "applies to patients or users of a new drug as well as a manufacturer of the same. See Rutherford v. United States, 616 F.2d 455 (Tenth Cir.1980), cert, denied, 449 U.S. 937, 101 S.Ct. 336, 66 L.Ed.2d 160 (1980). The Rutherford litigation considered whether a new drug is exempt as to the terminally ill (which is not asserted herein) and also considered the burdensomeness/ due process issue and the grand father clause issue, both of which matters will be hereinafter discussed. It is clear that the “U” Series is a drug. It is for the treatment of disease (Down’s Syndrome). Rutherford makes clear that it is also a “new drug” requiring users thereof as well as makers thereof to pursue the prescribed statutory procedures for approval for introduction into interstate commerce. To the same effect as Rutherford, see Carnohan v. United States, 616 F.2d 1120 (Ninth Cir.1980) where the Ninth Circuit required a plaintiff who was one desiring to use Laetrile to exhaust his administrative remedies and seek approval under the Act. In Rutherford v. American Medical Association, 379 F.2d 641 (Seventh Cir. 1967), cert, denied, 389 U.S. 1043, 88 S.Ct. 787, 19 L.Ed.2d 835 (1968), the plaintiffs were a physician and several patients who desired to use the drug Krebiozen without an approved application or an investigational exemption under 21 U.S.C. 355(i) and who were denied any relief and their complaint dismissed, and see Gadler v. U.S., 425 F.Supp. 244 (D.Minn.1977) where a plaintiff sought the use of an unapproved drug for his personal use and was denied relief by a holding that the prohibition against shipping unapproved new drugs in interstate commerce applied to all persons and not just manufacturers or distributors. Also see Tutoki v. Celebrezze, 375 F.2d 105 (Seventh Cir.1967) (consumers of an unapproved cancer drug (Krebiozen) were held to be required to go through the new drug approval process, and their complaint for an injunction against the FDA was dismissed); Forsham v. Califano, 442 F.Supp. 203, 210 (D.D.C.1977), (physicians and consumers of a drug for diabetes sought to enjoin the FDA from suspending approval of" }, { "docid": "22002732", "title": "", "text": "not recognized as safe and effective still “shall not be deemed to be a ‘new drug’ if at any time prior to [this] enactment [October 10, 1962] it was subject to the Food and Drugs Act of June 30, 1906, as amended, and if at such time its labeling contained the same representations concerning the conditions of its use . . . 21 U.S.C. § 321(p)(l). Many believe that simply administering Laetrile to tumor-bearing mice, particularly when the results of such tests are so much in controversy, is not dispositive of the issue. Laetrile proponents often submit that it should be utilized in conjunction with a dietary regimen essential to the drug’s success. Significantly, animal testing sheds little light on the placebo effect, that is, the healing effect accompanying the psychological uplight and renewed sense of hope which often attends administration of a substance in which a patient strongly believes. It is only when the substance is openly used, and its results carefully observed and fully reported that this controversy will be resolved. IV THE “1962 GRANDFATHER CLAUSE” ISSUE If on October 9, 1962, Laetrile was marketed for the same uses for which it is presently being sold and if generally recognized by qualified experts as safe for those uses, the grandfather clause exempts it from the test of general recognition by experts as being both safe and effective for its claimed uses. Rutherford v. United States, 542 F.2d 1137 (10th Cir. 1976) supra; Tyler Pharmacal Distributors, Inc. v. United States Department of HEW, 408 F.2d 95, 99 (7th Cir. 1969). Based upon FDA’s own administrative record in this case and the applicable statutes and case law, the court concludes that the agency’s classification of Laetrile as a “new drug” is “arbitrary, capricious, an abuse of discretion” and as a matter of law unsupportable. Citizens to Preserve Over-ton Park v. Voipe, supra, 401 U.S. at 416, 91 S.Ct. 814; 5 U.S.C. § 706(2)(A). The record and the law reasonably support but one conclusion: Laetrile (Amygdalin) has been commercially used and sold in the United States for the treatment of cancer" }, { "docid": "22358419", "title": "", "text": "Mr. Justice Marshall delivered the opinion of the Court. The question presented in this case is whether the Federal Food, Drug, and Cosmetic Act precludes terminally ill cancer patients from obtaining Laetrile, a drug not recognized as “safe and effective” within the meaning of §201 (p) (1) of the Act, 52 Stat. 1041, as amended, 21 U. S. C. § 321 (p) (1). I Section 505 of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1052, as amended, 21 U. S. C. § 355, prohibits interstate distribution of any “new drug” unless the Secretary of Health, Education, and Welfare approves an application supported by substantial evidence of the drug’s safety and effectiveness. As defined in § 201 (p) (1) of the Act, 21 TJ. S. C. § 321 (p) (1), the term “new drug” includes “[a]ny drug . . . not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling . . . Exemptions from premarketing approval procedures are available for drugs intended solely for investigative use and drugs qualifying under either of the Act’s two grandfather provisions. In 1975, terminally ill cancer patients and their spouses brought this action to enjoin the Government from interfering with the interstate shipment and sale of Laetrile, a drug not approved for distribution under the Act. Finding that Laetrile, in proper dosages, was nontoxic and effective, the District Court ordered the Government to permit limited purchases of the drug by one of the named plaintiffs. 399 F. Supp. 1208, 1215 (WD Okla. 1975). On appeal by the Government, the Court of Appeals for the Tenth Circuit did not disturb the injunction. However, it instructed the District Court to remand the case to the Food and Drug Administration for determination whether Laetrile was a “new drug” under §201 (p) (1), and, if so, whether it was exempt from premarketing approval under either of the Act’s grandfather clauses. 542 F. 2d 1137 (1976). After completion of administrative hearings, the" }, { "docid": "372234", "title": "", "text": "and Rutherford v. United States, 438 F.Supp. 1287 (D.C.). In Rutherford v. United States, 542 F.2d 1137 (10th Cir.), we held that an adequate administrative record had not been developed by the Commissioner to justify classifying Laetrile as a new drug. We remanded and said: “. . .To support its determination the FDA in the ease at bar would have to present substantial evidence to support the proposition that Laetrile is not generally recognized among qualified experts as ‘safe and effective,’ and that Laetrile is not grandfathered by either of the exemptions discussed above.” We also upheld a preliminary injunction granted by the district court with prevented the FDA from interfering with a cancer patient’s personal use of the drug. On remand, the Commissioner compiled some 5,500 pages of written submissions and held two days of oral hearings before making a determination. This was apparently a rule-making proceeding under section 701 of the Act, 21 U.S.C. § 371. The unsworn material compiled by the agency represents diverse views but does not appear to be the typical record which should be formulated to support an agency determination which is dealing with issues of scientific and medical expertise or in response to our remand. However, we fully realize difficulties in making a record when the proponents of a drug are a group of individuals and not the typical drug manufacturer who conducted extensive laboratory tests and assembled a mass of scientific data. The FDA was considering what may be regarded as a folk medicine with no established or organized proponents. This was difficult to do within the structure of the agency. After consideration of the record on remand, the Commissioner announced that: (1) Laetrile is not generally recognized by qualified experts as a safe and effective cancer drug; and (2) Laetrile is not exempt from the premarket approval requirement for new drugs by virtue of the “grandfather” provisions of the Act. Distribution of Laetrile in interstate commerce, the Commissioner concluded, is thus illegal and subject to regulatory activity by the Food and Drug Administration. The district court reviewed the administrative record and" }, { "docid": "7538427", "title": "", "text": "field. Yet, even if the Court assumes that every exhibit submitted by the plaintiffs was authored by an expert qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, the plaintiffs still fail to advance their cause, for the Court cannot find a single document claiming that laetrile tablets and vials are generally recognized as safe and effective for the treatment of cancer by experts in this country. Indeed plaintiff Schuster implicitly conceded that this burden of proof cannot be met. She testified that, to her knowledge, the great majority of doctors and other experts in the United States “do not believe in laetrile,” and hence do not recognize it as safe and effective. Of the doctors and experts who believe that laetrile works, she testified: “It’s a minority, that’s for sure.” This Court’s conclusion that the plaintiffs will not be able to establish that laetrile tablets and vials are not “new drugs” within the meaning of the Act, is supported by every reported case which has considered the matter. See United States of America v. Spectro Foods Corp., No. 76-101 (D.N.J. January 28, 1976) at Slip Op. 7 (“the promotion or sale of amygdalin for any food or drug use constitutes a fraud on the consuming public”); Rutherford v. United States, 399 F.Supp. 1208 (W.D.Okl.1975); United States v. General Research Laboratories, 397 F.Supp. 197 (C.D.Calif.1975). Section 355(a) of the Act provides that any new drug cannot be shipped in interstate commerce unless an approval of an application filed pursuant to § 355(b) is effective with respect to such a drug. Section 355(b) sets forth the requirements for a new drug application, including “full reports of investigations which have been made to show whether or not such drug is safe for use and whether such drug is effective in use.” The affidavit of Carl M. Leventhal of the Bureau of Drugs establishes that no new drug application for laetrile tablets or liquid has ever been on file at the FDA. Any distribution of laetrile tablets and vials in interstate commerce is therefore a violation of 21" }, { "docid": "7538413", "title": "", "text": "MEMORANDUM ORDER LARSON, District Judge. The plaintiffs in this civil action for injunctive and declaratory relief operate as a Shaklee Distributing Agency located in Rochester, Minnesota. Among the items which they are in the business of selling and distributing in interstate commerce is a product known variously as amygdalin, laetrile, or prunasin or “Vitamin B-17”, which they receive from a manufacturer in Mexico in tablet and liquid form (vials), and which they in turn sell to the ultimate users of the product. The product is comprised of an extraction from the kernels of apricot pits. The complaint alleges that: “[a]mong the dramatic effects of a diet rich in Vitamin B-17 is the prevention, control, arrest and minimization of cancerous tissue growths . . . The defendants are the United States and various officers thereof responsible for the enforcement and administration of the Food, Drug, and Cosmetic Act, as amended. 21 U.S.C. §§ 301 et seq. They have taken the position that the laetrile tablets and vials which are being imported and distributed by the plaintiffs are “new drugs” within the meaning of 21 U.S.C. § 321(p), and that the plaintiffs’ conduct is unlawful under 21 U.S.C. § 355(a) because the Food and Drug Administration [FDA] has not approved a new drug application with respect to the drug; indeed, say the defendants, no new drug application has ever been filed in accordance with 21 U.S.C. § 355(b). Because of their view that the importation and distribution of laetrile vials and tablets in interstate commerce is prohibited, Federal authorities obtained search warrants on December 23, 1975, for the plaintiffs’ residences. Several items were seized in the execution of those warrants, including a quantity of the product laetrile. On January 9, 1976, the plaintiffs were indicted by the Grand Jury for the Southern District of California on charges of smuggling vials and tablets of laetrile, in violation of 18 U.S.C. §§ 371 and 545. That criminal prosecution is currently pending. The plaintiffs do not deny that there is no approved new drug application with respect to the laetrile tablets and vials. They argue," }, { "docid": "22002724", "title": "", "text": "OPINION BOHANON, District Judge. The plaintiffs seek judicial review of the Food and Drug Administration’s (FDA’s) determination that the substance commonly called Laetrile is a “new drug” within, the meaning of the Federal Food, Drug, and Cosmetic Act, (the Act); (21 U.S.C. § 301 et seq.), and excludable from interstate commerce due to the absence of an approved new drug application on its behalf. (21 U.S.C. § 355). On July 29, 1977, the Commissioner of Food and Drugs announced that: (1) Laetrile is not generally recognized by qualified experts as a safe and effective cancer drug and (2) Laetrile is not exempt from the pre-market approval requirement for new drugs by virtue of the “grandfather” provisions of the Act. Distribution of Laetrile in interstate commerce, the Commissioner concluded, is thus illegal and subject to regulatory activity by the Food and Drug Admin istration. Commissioner’s Decision (R 523 at l). Plaintiffs challenge such administrative decision and urge that Laetrile is not a “drug,” that in any event it is not a “new drug,” and that FDA’s enforcement procedures against the interstate transportation and use of the substance violate plaintiffs’ constitutional rights. I STANDARD OF REVIEW FDA possesses jurisdiction to initially determine whether a substance is a “new drug” within the Act’s meaning, Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 627, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973), but such determination is reviewable by the district court under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., Weinberger, supra. To be affirmed, the administrative decision must not be arbitrary, capricious or abusive of agency discretion. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The court in its review must consider whether the decision was based upon a consideration of the relevant factors and whether there has been a clear error of judgment. Citizens to Preserve Overton Park v. Volpe, supra. While the standard of review is narrow, and the court is not empowered to substitute its judgment for that of the agency, nonetheless, the reviewing court possesses a responsibility" }, { "docid": "674370", "title": "", "text": "dormant; however, there is danger of recurrence of the cancer unless plaintiff continues to receive treatment. In addition, the plaintiff in order to have and use B17 or laetrile is subjecting himself and his agent to criminal prosecution should plaintiff contravene prohibitions set out in § 355 by making what plaintiff feels is a life versus law decision, Continental Oil Co. v. Frontier Ref. Co., 338 F.2d 780 (C.A.10, 1964). The Court concludes that it has jurisdiction under 28 U.S.C. § 1337 where provision is made for jurisdiction of proceedings arising under any Act of Congress regulating commerce and where the prohibiting language of § 355 of the Pure Food and Drug Act stems from and has to do with commerce powers of the United States. It has been shown that the plaintiff here is precluded from transporting laetrile or B17 in commerce. See Schatte v. International Alliances of Theatrical Stage Employees & Moving Picture Operators of U. S. and Canada, 70 F.Supp. 1008 (D.C.Cal.1947), aff’d 165 F.2d 216 (9 Cir.) cert. denied 334 U.S. 812, 68 S.Ct. 1018, 92 L.Ed. 1743. The Court finds from the evidence that laetrile is not a toxic or harmful substance if used in proper dosage but is on the other hand an alternative treatment of cancer which can be used in lieu of surgery or radiation cobalt. After plaintiff presented its evidence and rested, the Court inquired of defendant counsel if defendant had any evidence to offer and the reply was in the negative. Thereafter the following colloquy took place: “MB. GELLEB: On the jurisdictional issue, if the Court finds that there is no jurisdiction, the Court could, I believe, allow them to take that wp on appeal. If the Court finds there is no jurisdiction, then there is no lawsuit anyway and I think that would be a final judgment. * * * •» -X- * MB. GELLEB: If the Court did grant a temporary injunction, we would take a stay and we would take it up to the Circuit as soon as possible for review by the Tenth Circuit Court of" }, { "docid": "22002728", "title": "", "text": "issues are presented: 1. Is Laetrile a drug? 2. Is Laetrile a “new drug” within the meaning of § 201(p) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 321(p) in that it is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use in the cure, mitigation, treatment, or prevention of cancer in ■man, and in that it is not “grandfathered” by one of the Act’s provisions applicable to those drugs marketed before the current “new drug” statutory provision became effective? 3. Is the agency action in question violative of plaintiffs’ constitutional rights? II NEW DRUG ISSUE FDA asserts authority to preclude Laetrile’s importation or interstate transportation on the basis that it is a “new drug” within the Act’s meaning. “No person shall introduce or deliver for introduction into interstate commerce any new drug,” unless an application on its behalf has been approved. 21 U.S.C. § 355(a). It is conceded that no such application in regard to Laetrile has been approved, but plaintiffs challenge the Commissioner’s categorization of Laetrile as a “new drug.” Plaintiffs initially question the determination that Laetrile is a drug, contending instead that it is a vitamin or food. “Drug” is defined to include “articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals . . . .” 21 U.S.C. § 321(g)(1)(B). The court need not rule whether Laetrile is a food or a vitamin, since, in any event, its well-recognized use in the treatment of cancer renders it a drug within the context of the statutory definition. Ill THE “GENERALLY RECOGNIZED . . . AS SAFE AND EFFECTIVE” ISSUE If Laetrile’s composition is such that it is generally recognized among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use in the treatment of cancer, it is not a “new drug” within the Act’s meaning and not subject to the asserted FDA regulation. 21 U.S.C. § 321(p)(l). Unquestionably," }, { "docid": "12993546", "title": "", "text": "can be constructed and a meaningful judicial review subsequently held. In view, however, of the complete absence of any good-faith agency record in support of its position in this case, as the record here is not merely incomplete, but virtually nonexistent; and in appreciation of the fact that depriving a terminally ill cancer patient of a substance he finds therapeutic, whether such benefit is physical or psychological, creates the very real risk that irreparable injury might be sustained. IT IS HEREBY ORDERED, pursuant to 5 U.S.C. § 705, that while this case is on remand to the FDA, and until such time as the FDA proffers to the Court an administrative record containing substantial evidence in support of its determination that Laetrile is a “new drug” under the terms of the relevant statute, such determination is held to be without force or effect as to the plaintiff class in this case, and defendant FDA is hereby enjoined and restrained from preventing plaintiffs’ importation or interstate transportation of Laetrile for purposes of their own consumption under the terms of the Food and Drug Act, including § 505(a) of the Act, 21 U.S.C. § 355(a). IT IS FURTHER ORDERED that on remand an administrative record shall be developed within 120 days from the date hereof, and a copy of such record and administrative determinations resulting therefrom shall be filed with the Clerk of this Court and the plaintiffs within 30 days thereafter. Such administrative hearing should be concerned with the issue of whether Laetrile is exempt from the “new drug” application requirements of the Food and Drug Act, § 505(b), 21 U.S.C. § 355(b), by virtue of the “grandfather” clauses, and also with the issue of whether Laetrile is “safe and effective,” as set out in the Circuit Court Opinion. The plaintiffs herein have moved this Court for an Order directing the FDA to hear testimony and evidence of Dr. Dean Burk, Washington, D. C., and Dr. Ernest Krebs, Jr., San Francisco, California, as experts in their field, and also evidence and testimony of Mike Culbert, Edward Griffin and Mike Spencer, as" }, { "docid": "13940452", "title": "", "text": "we are of the opinion that the question whether this is a new drug presents a mixed question of fact and law which should be fully tried. As it is, the FDA’s record is grossly inadequate and consists merely of a conclusory affidavit of an official of the FDA which in effect declares that it. is a new drug because the FDA says it is and thus is subject to all of the statutory vagaries of such a designation. I. As we view it, the reason that the Food and Drug Administration is anxious to classify Laetrile as a new drug is so as to bring it within the new drug certification procedures of the Food, Drug and Cosmetics Act. Section 505(a) of the Act, 21 U.S.C. Section 355(a). This provision bars the introduction into interstate commerce of a new drug without an approved new drug application having been filed pursuant to the Act just cited. The Secretary is required to review the application within a specified period on the criteria of safety and effectiveness as demonstrated by “adequate and well-controlled investigations.” Such an application is reviewable directly in the court of appeals. The plaintiff-appellee’s position on this is that Laetrile escapes the clutches of this Act by being a food rather than a drug, or even if it is a drug it is not a new drug. A. It is unnecessary to linger and dwell on the subject whether it is a food or a drug inasmuch as this is not determinative. Appellee argues that it is in the nature of a diet supplement or a vitamin, but the cases recognize that even if a substance is also a food it may be subjected to the requirements of the Act if it is used in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals. Intended use is an important aspect in the determination whether it is a drug. See Hanson v. United States, 417 F.Supp. 30 (D.Minn.1976). Unquestionably Laetrile is intended at least as a treatment for cancer, so the likelihood that Rutherford can" }, { "docid": "372233", "title": "", "text": "SETH, Chief Judge. The Government appellants seek review of a district court holding which set aside a determination of the Commission of Food and Drugs that Laetrile, a controversial cancer drug, is a “new drug” within the meaning of the Federal Food, Drug, and Cosmetic Act (\"the Act”), 21 U.S.C. § 301 et seq., and thus excludable from interstate commerce due to the absence of an approved new drug application. The central question here is whether the plaintiffs, a class of terminally ill cancer patients, should be allowed to acquire Lae trile for their own use intravenously despite the Act’s requirements that “safety” and “effectiveness” be established for the approval of a “new drug.” We conclude as a matter of law that the “safety” and “effectiveness” terms used in the statute have no reasonable application to terminally ill cancer patients, and have no established meaning when considered in that context. This case is before us for the second time. For a summary of the facts, see Rutherford v. United States, 542 F.2d 1137 (10th Cir.), and Rutherford v. United States, 438 F.Supp. 1287 (D.C.). In Rutherford v. United States, 542 F.2d 1137 (10th Cir.), we held that an adequate administrative record had not been developed by the Commissioner to justify classifying Laetrile as a new drug. We remanded and said: “. . .To support its determination the FDA in the ease at bar would have to present substantial evidence to support the proposition that Laetrile is not generally recognized among qualified experts as ‘safe and effective,’ and that Laetrile is not grandfathered by either of the exemptions discussed above.” We also upheld a preliminary injunction granted by the district court with prevented the FDA from interfering with a cancer patient’s personal use of the drug. On remand, the Commissioner compiled some 5,500 pages of written submissions and held two days of oral hearings before making a determination. This was apparently a rule-making proceeding under section 701 of the Act, 21 U.S.C. § 371. The unsworn material compiled by the agency represents diverse views but does not appear to be the" }, { "docid": "20353922", "title": "", "text": "American Medical Association, 379 F.2d 641 (Seventh Cir. 1967), cert, denied, 389 U.S. 1043, 88 S.Ct. 787, 19 L.Ed.2d 835 (1968), the plaintiffs were a physician and several patients who desired to use the drug Krebiozen without an approved application or an investigational exemption under 21 U.S.C. 355(i) and who were denied any relief and their complaint dismissed, and see Gadler v. U.S., 425 F.Supp. 244 (D.Minn.1977) where a plaintiff sought the use of an unapproved drug for his personal use and was denied relief by a holding that the prohibition against shipping unapproved new drugs in interstate commerce applied to all persons and not just manufacturers or distributors. Also see Tutoki v. Celebrezze, 375 F.2d 105 (Seventh Cir.1967) (consumers of an unapproved cancer drug (Krebiozen) were held to be required to go through the new drug approval process, and their complaint for an injunction against the FDA was dismissed); Forsham v. Califano, 442 F.Supp. 203, 210 (D.D.C.1977), (physicians and consumers of a drug for diabetes sought to enjoin the FDA from suspending approval of a new drug application because of harm and inconvenience to which they allegedly would be subjected as the result of their inability to get the disapproved drug, but their motion for preliminary injunction was denied); In re Morgan, et al. v. Matthews, et al., Civil Action No. 76-1637 (Nov. 30, 1976, D.S.Car.), (consumers of Laetrile were denied a preliminary injunction against the FDA for lack of probability of success on the merits because, inter alia, “No NDA is or was in effect with respect to Laetrile”). Hence, the “U” Series is an unapproved new drug under the Act and Plaintiffs as users thereof are not entitled as a matter of law to the requested injunctive relief by which the Defendants would be prohibited from interfering with their desired use thereof. BURDENSOMENESS ISSUE The Rutherford litigation and several of the cases above cited have also settled the burdensomeness/due process claim made herein by Plaintiffs. Though expensive and time-consuming, the obtaining of the statutory approval for interstate movement of a drug is necessary for all, including a" } ]

[ { "docid": "11543230", "title": "", "text": "to the percentage method of determining reasonable attorneys’ fees, ‘the hours documented by counsel need not be exhaustively scrutinized by the district court.’ ” 388 F.Supp.2d at 355 (quoting Goldberger, 209 F.3d at 50). Under both methods, there are numerous factors that may be considered in determining a reasonable fee. The Fourth Circuit adopted a 12-factor test in Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n. 28 (4th Cir.1978). The terms of a retainer agreement negotiated, as it was in this case, between lead counsel and a sophisticated institutional investor designated as lead plaintiff deserve some deference, see In re WorldCom, Sec. Litig., 388 F.Supp.2d at 356; In re Cendant Corp. Litig., 264 F.3d 201, 282 (3rd Cir.2001), although such terms are not dispositive, see Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 123-24 (2d Cir.2005). Another important principle is that the percentage awarded ordinarily should decrease as the amount of the recovery rises, particularly in “mega-fund” cases where the recovery is above $100 million. In re Cendant Corp. PRIDES Litig., 243 F.3d 722, 736 (3d Cir.2001). In this case, counsels’ lodestar figure is $50,858,606.25, representing 147,896.05 hours expended at various hourly rates. The retainer agreement permitted counsel to request 20% of the settlement amount, but that was voluntarily reduced to the 15% now sought. Counsel also agreed not to request a fee on any interest the settlement fund earns, and not to seek fees for the time spent after May 11, 2006, in effectuating the settlement, including distribution of the fund to the class. Cf. In re WorldCom Sec. Litig., 388 F.Supp.2d at 354 n. 50. Objections to the attorneys’ fees request were filed by John Pentz, Esq., purportedly on behalf of plaintiff Linda Tsai (docket entry no. 722); and by United States Trust Company, National Association (“U.S.Trust”) (docket entry no. 741). Pentz is a professional and generally unsuccessful objector who apparently attached himself to Tsai; Tsai was represented by different counsel at the early stages of this litigation. Her initial objections to the settlement, filed on March 29, 2006, complained that Ahold should pay more" } ]

[ { "docid": "123643", "title": "", "text": "apportion fees amongst themselves”); Prudential, 148 F.3d at 329 n. 96 (private allocation agreements relieve courts from \"undertaking] the difficult task of assessing counsels' relative contributions”) (citation omitted). . Similarly, we have referred to the settlement as \"a landmark effort to reconcile the rights of millions of individual plaintiffs with the efficiencies and fairness of a class-based settlement.” Diet Drugs, 369 F.3d at 317. . To the extent that Riepen makes the related argument that the Gunter/Prudential factor of attorney skill and effort does not support such a large award, the District Court has, as noted above, said otherwise, and Riepen has not demonstrated that the relevant findings are clearly erroneous. . \"To say that this litigation was complex,” in the District Court’s view, \"is seriously to understate the fact.” Diet Drugs, 553 F.Supp.2d at 475. The Court emphasized \"the complicated nature of this matter, and the constant challenges, many of them novel, which [Class Counsel] as well as this court encountered year in and year out, and often day in and day out.” Id. . In total, the Court considered nine such cases: In re Tyco Int’l Ltd., 535 F.Supp.2d 249 (D.N.H.2007); In re Royal Ahold N.V. Sec. & ERISA Litig., 461 F.Supp.2d 383 (D.Md.2006); In re AOL Time Warner, Inc. Sec. Litig., No. 02 Civ. 5575(SWK), 2006 WL 3057232 (S.D.N.Y. Oct.25, 2006); In re WorldCom, Inc. Sec. Litig., 388 F.Supp.2d 319 (S.D.N.Y.2005); In re Visa Check/Mastermoney Antitrust Litig., 297 F.Supp.2d 503 (E.D.N.Y.2003); Deloach v. Philip Morris Cos., No. 1:00CV01235, 2003 WL 23094907 (M.D.N.C. Dec. 19, 2003); In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig., 268 F.Supp.2d 907 (N.D.Ohio 2003); Shaw v. Toshiba Am. Info. Sys., 91 F.Supp.2d 942 (E.D.Tex.2000); In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465 (S.D.N.Y.1998). . We too noted the “potential significance” that the Settlement Agreement's innovations hold for future class action settlements, Diet Drugs, 401 F.3d at 162 (3d Cir.2005), as did at least one commentator, see Nagareda, supra, 115 Harv. L.Rev. at 797. The Settlement Agreement's potentially positive impact as a model for other cases appears to be largely unrealized" }, { "docid": "2304257", "title": "", "text": "9 (6,344,133 pieces of mail sent to approximately 5.5 million individuals). . Objectors Sally J. van Haitsma, Tara Castaldo, and Michael A. Brusca (represented by Forrest S. Turkish); Objector David Sacks (represented by Douglas A. Cole); Objectors David Stevens and Orion Antique Importer, Inc. (represented by Thomas L. Cox, Jr.); Objectors Robert and Katherine Falkner (represented by Edward Cochran); Objector J.M. Cooper (represented by Chris M. Trepagnier); Objectors Joshua West, Lester Brickman, Darren McKinney, and Michael Sullivan (represented by Theodore H. Frank (pro hac vice) and David M. Nieporent (local)); Objector Paul M. Kaufman (represented by Vincent S. Verdiramo (local) and Edward F. Siegel (pro hac vice)); and David T. Murray and James E. Pentz (represented by John J. Pentz). . Edward Cochran (representing Objectors Robert and Katherine Falkner); Theodore H. Frank (pro hac vice) (representing Objectors Joshua West, Lester Brickman, Darren McKinney, and Michael Sullivan); Edward F. Siegel (pro hac vice) (representing Objector Paul M. Kaufman); and John J. Pentz (representing David T. Murray and James E. Pentz). . See Taubenfeld v. AON Corp., 415 F.3d 597, 599 (7th Cir.2005) (faulting Pentz for failing to articulate his client’s argument and putting forth \"conclusory assertions” in his client's written objection); In re Wal-Mart Wage and Hour Employment Practices Litig., Civ. No. 06-225, 2010 WL 786513, at *1 (D.Nev. Mar. 8, 2010) (finding that Pentz, Siegel, and Cochran have a \"documented history of filing notices of appeal from orders approving other class action settlements, and thereafter dismissing said appeals when they and their clients were compensated by the settling class or counsel for the settling class”); Lonardo v. Travelers Indem. Co., 706 F.Supp.2d 766, 785-86 (N.D.Ohio 2010) (calling Frank's brief \"long on ideology and short on law” when he failed to cite a single case); In re Initial Public Offering Sec. Litig., 671 F.Supp.2d 467, 497 n. 219 (S.D.N.Y.2009) (noting that Pentz has been criticized by other courts for submitting “canned objections”); In re UnitedHealth Group Inc. PSLRA Litig., 643 F.Supp.2d 1107, 1109 (D.Minn.2009) (holding that Siegel and other professional objectors \"conferred no benefit whatsoever on the class or on the" }, { "docid": "19301466", "title": "", "text": "the context of joint ventures. The law firms of Berger & Montague and Coughlin Stoia were indefatigable. They represented the Class with a high degree of professionalism, and vigorously litigated every issue against some of the ablest lawyers in the antitrust defense bar. 5. The Requested Fee in Relation to Settlement “To avoid routine windfalls where the recovered fund runs into the multi-millions, courts typically decrease the percentage of the fee as the size of the fund increases.” In re Interpublic Sec. Litig., No. 02 Civ. 6527(DLC), 2004 WL 2397190, at *11 (S.D.N.Y. Oct.26, 2004) (internal citations and quotation marks omitted). The proposed attorney’s fee of 27.5% of the net fund is on the high end of the range of fee awards in other recent class actions in this Circuit, compare In re Veeco Instruments Inc. Sec. Litig., No. 05 MDL 01695(CM), 2007 WL 4115808 (S.D.N.Y. Nov.7, 2007) (awarding attorneys’ fees of 30% of a $5.5 million fund); In re Oxford Health Plans. Inc. Sec. Litig., MDL 1222(CLB), slip op., at 7 (S.D.N.Y. June 12, 2003) (awarding 28% of a $300 million fund); In re Priceline.com. Inc. Sec. Litig., No. 00-1884(AVC), 2007 WL 2115592, at *5 (D.Conn. July 20, 2007) (awarding 30% of an $80 million fund) with Goldberger. 209 F.3d 43 (affirming the district court’s award of 4% of a $54 million settlement); In re Air Cargo Shipping Serv. Antitrust Litig., 06 MDL 1775(JG), 2009 WL 3077396, at *16 (E.D.N.Y. Sept. 25, 2009) (awarding 15% of $85 million fund); In re Elan Sec. Litig., 385 F.Supp.2d 363 (S.D.N.Y.2005) (awarding 12% of a $75 million settlement); Carlson v. Xerox Corp., 596 F.Supp.2d 400, 413-14 (D.Conn.2009) (awarding 16% of $750 million fund); Denney v. Deutsche Bank, 230 F.R.D. 317, 352-54 (S.D.N.Y.2005) (awarding 15.5% of $81.5 million fund); In re Bristol-Myers Squibb Sec. Litig., 361 F.Supp.2d 229, 236 (S.D.N.Y.2005) (awarding 3% of $300 million settlement). 6. Public Policy Considerations While public policy favors “the award of reasonable attorney’s fees,” courts must also “guard against providing a monetary windfall to class counsel to the detriment of the plaintiff class.” In re NTL Inc." }, { "docid": "2304215", "title": "", "text": "306 (12,906 hours). Moreover, the Court cannot ignore class counsel’s ongoing obligation to the millions of class members for which additional time will be spent without further compensation. g. The Awards in Similar Cases Lastly, the Court compares the award requested in this action with the awards in similar actions. In re Rite Aid, 396 F.3d at 301. In doing so, the Court (1) compares the actual award requested to other awards in comparable settlements; and (2) ensures that the award is consistent with what an attorney would have likely received if the fee was negotiated on the open market. See In re Datatec Sys., Inc. Sec. Litig., Civ. No. 04-525, 2007 WL 4225828, at *8 (D.N.J. Nov. 28, 2007); In re Ins. Brokerage Antitrust Litig., Civ. No. 04-5184, 2007 WL 2916472, at *7 (D.N.J. Oct. 5, 2007). The Court of Appeals for the Third Circuit has held that since percentages of attorneys fees awarded have varied considerably, the Court “may not rely on a formulaic application of the appropriate range in awarding fees but must consider the relevant circumstances of the particular case.” In re Cendant PRIDES, 243 F.3d at 736. Accordingly, in most cases, the courts have held that the percentages will decrease as the size of the fund increases because “[i]n many instances the increase [in recovery] is merely a factor of the size of the class and has no direct relationship to the efforts of counsel.” In re Prudential, 148 F.3d at 339 (quoting In re First Fidelity Bancorporation Sec. Litig., 750 F.Supp. 160, 164 n. 1 (D.N.J.1990)); see also In re Rite Aid Corp. Sec. Litig., 146 F.Supp.2d 706, 735 (E.D.Pa.2001) (“In re Rite Aid”) (a review of 289 settlements demonstrating “average attorney’s fees percentage [of] 31.71%” with a median value that “turns out to be one-third”); In re Cendant PRIDES, 243 F.3d at 736 (noting that most fee awards in common fund cases range “from nineteen percent to forty-five percent of the settlement fund”). The percentage of the plaintiffs’ requested amount of $22,500,000 is 15.83% of the $142 million value that the plaintiffs originally" }, { "docid": "2304258", "title": "", "text": "415 F.3d 597, 599 (7th Cir.2005) (faulting Pentz for failing to articulate his client’s argument and putting forth \"conclusory assertions” in his client's written objection); In re Wal-Mart Wage and Hour Employment Practices Litig., Civ. No. 06-225, 2010 WL 786513, at *1 (D.Nev. Mar. 8, 2010) (finding that Pentz, Siegel, and Cochran have a \"documented history of filing notices of appeal from orders approving other class action settlements, and thereafter dismissing said appeals when they and their clients were compensated by the settling class or counsel for the settling class”); Lonardo v. Travelers Indem. Co., 706 F.Supp.2d 766, 785-86 (N.D.Ohio 2010) (calling Frank's brief \"long on ideology and short on law” when he failed to cite a single case); In re Initial Public Offering Sec. Litig., 671 F.Supp.2d 467, 497 n. 219 (S.D.N.Y.2009) (noting that Pentz has been criticized by other courts for submitting “canned objections”); In re UnitedHealth Group Inc. PSLRA Litig., 643 F.Supp.2d 1107, 1109 (D.Minn.2009) (holding that Siegel and other professional objectors \"conferred no benefit whatsoever on the class or on the Court” and calling their pleadings \"disingenuous,” \"outlandish,” \"laughable,” and an attempt to \"hijack as many dollars as they can wrest from a negotiated settlement”); Perez v. Asurion Corp., Civ. No. 06-20734, 2007 WL 2591180, at *8 (S.D.Fla. Aug. 8, 2007) (stating that the court \"did not find any of the papers filed by [Siegel] to be particularly helpful”); In re AOL Time Warner ERISA Litig., Civ. No. 02-8853, 2007 WL 4225486, at *3 (S.D.N.Y. Nov. 28, 2007) (calling Pentz and Tsai’s arguments \"counterproductive” and \"irrelevant or simply incorrect”); In re Royal Ahold N.V. Sec. & ERISA Litig., 461 F.Supp.2d 383, 386 (D.Md.2006) (noting that Pentz is a professional objector who attached himself to a plaintiff and holding that his objection was \"not well reasoned and was not helpful”); In re Rent-Way Sec. Litig., 305 F.Supp.2d 491, 520 n. 12 (W.D.Pa.2003) (denying objector Douglas A. Cole's application for attorneys' fees and noting an accusation by the plaintiffs' attorney that Cole tried to \"strike a separate, more favorable settlement for [his] client in derogation of [lead counsel's]" }, { "docid": "8414617", "title": "", "text": "evidence that he had not relied on the price when purchasing the stock). . See 8/4/09 Objection of David Murray and Jackie Pio (\"While manageability may no longer be a concern in a settlement context since there will be no trial, the reasons that led the Second Circuit to reverse certification — reliance, causation, and ascertainability — are not eliminated by the settlement.”); 8/10/09 Objection of Timothy Sears (\"[T]he class certification will likely be reversed by the Second Circuit as it did in [Miles I], This settlement has not eliminated the issues that led to reversal of certification in Miles: reliance, causation and ascertainability.”). Plaintiffs note that the counsel that represent these objectors are professional objectors. For instance, they inform the Court that attorney John Pentz, who filed the objection on behalf of David Murray and Jackie Pio, has been criticized by courts for his canned objections. See In re AOL Time Warner ERISA Litig., No. 02 Civ. 8853, 2007 WL 4225486, at *3 (S.D.N.Y. Nov. 28, 2007) (calling Pentz and another attorney’s arguments “counterproductive” and \"irrelevant or simply incorrect”); In re Royal Ahold N.V. Sec. & ERISA Litig., 461 F.Supp.2d 383, 386 (D.Md.2006) (noting that Pentz is a professional objector who “attached himself” to a plaintiff and holding that his objection was \"not well reasoned and was not helpful.”); Taubenfeld v. AON Corp., 415 F.3d 597, 599 (7th Cir.2005) (faulting Pentz for failing to articulate his client’s argument and putting forth “conclusory assertions” in his client’s written objection). . See Notice of Pendency at 8. . See PL Mem. at 25. . See Notice of Pendency at 8. . See id. at 14. . See id. at 14-15. . See id. at 15. . See id. . See, e.g., 7/6/09 Objection of Erin Hall Meade (“The amount of settlement monies paid out to damaged sharesholders relative to the amount paid out to attorneys seems disproportionately small.... For the paltry amount I would receive, it is not worthwhile for me to fill out the required paperwork.”); 7/17/09 Objection of Greg Linden (“For investors with 1000 or less shares, the []" }, { "docid": "12274872", "title": "", "text": "PL’s Counsels' Appl. for Attorneys’ Fees and Reimbursement of Expenses [Doc. No. 144] atp. 17 n. 9.) . Mr. Keller has no objection to a fee request of 18-25% of the Settlement but would object to an award of more than 25 percent. . We note that this process involved consideration of a unique legal issue — namely, whether Cramer Rosenthal, as an investment adviser, had standing to pursue the claims of its clients and thus obtain status as sole Lead Plaintiff in this case. See EZRA Charitable Trust, 136 F.Supp.2d at 439-44. . This is exclusive of any time spent working on counsels' fee petition. . Counsels’ fees were appropriately calculated based on current, rather than historic, hourly rates. See In re Peon Office Solutions, Inc. Sec. Litig., 194 F.R.D. 166, 195 (E.D.Pa. 2000) (citing cases). . The remaining amounts comprise expenses incurred by counsel representing other class members. . In fact, Mr. Cera characterizes the efforts of objectors’ counsel, particularly Mr. Cole, as nothing short of \"an attempt at legalized extortion in the guise of an objection.” (Lead PL’s Counsel's Appl. for Attorneys’ Fees and Reimbursement of Expenses [Doc. No. 144] at p. 31.) Mr. Cole apparently contacted Mr. Cera shortly before the date which the Court had established as the deadline for filing objections to the notice of Settlement. Mr. Cera accuses Mr. Cole of attempting, during this phone call, to strike a separate, more favorable settlement for Mr. Cole’s client in derogation of Mr. Cera’s fiduciary responsibilities to the Class as a whole. Although the Court is disturbed by the circumstances giving rise to these accusations, we need not resolve this factual issue for present purposes. It is sufficient that we conclude Mr. Cole has failed to demonstrate a basis for obtaining his requested attorneys’ fees." }, { "docid": "13563806", "title": "", "text": "was marginally useful as a frame of reference for the reasonableness of attorneys’ fees in PSLRA cases, other objectors analyzed it in more detail. That is not to say that objectors did not play an important role in delineating the reasonableness of the fee award. Quite the contrary. The Court relied on the objections from the State of New Jersey, the New York Teachers’ Retirement Systems, the State of New York Office of the Comptroller, and the Colorado Public Employees’ Retirement Association for their considerable experience in PSLRA class actions. By contrast, the objectors now moving for fees contributed little of value. In fact, the Murphy Group “clouded rather than sharpened the issues” by challenging, without basis, the timeliness and adequacy of the notice. See, e.g., In re Anchor Sec. Litig., No. 88 Cv. 3024, 1991 WL 53651, at *2 (E.D.N.Y. Apr. 8, 1991). Both the Murphy Group and Smith make outlandish fee requests in return for doing virtually nothing. It is undisputed that some objectors add value to the class-action settlement process by: (1) transforming the fairness hearing into a truly adversarial proceeding; (2) supplying the Court with both precedent and argument to gauge the reasonableness of the settlement and lead counsel’s fee request; and (3)preventing collusion between lead plaintiff and defendants. See, e.g., In re Homestore.com, Inc., No. CV01-11115, 2004 WL 2792185, at *1 (C.D.Cal. Aug. 10, 2004) (approving objectors’ motion for attorneys’ fees because objectors conferred substantial benefit on the class by bringing the inadequacy of the notice to the court’s attention); Frankenstein v. McCrory Corp., 425 F.Supp. 762, 767 (S.D.N.Y. 1977). Yet class actions also attract those in the legal profession who subsist primarily off of the skill and labor of, to say nothing of the risk borne by, more capable attorneys. These are the opportunistic objectors. Although they contribute nothing to the class, they object to the settlement, thereby obstructing payment to lead counsel or the class in the hope that lead plaintiff will pay them to go away. Unfortunately, the class-action kingdom has seen a Malthusian explosion of these opportunistic objectors, which now seem" }, { "docid": "3355721", "title": "", "text": "counsel were not seeking. On August 11, 2009, this Court approved the class action settlement, and awarded class counsel nearly $64.8 million in attorney’s fees. See In re UnitedHealth Group Incorporated PSLRA Litigation, 643 F.Supp.2d 1094, 1106 (D.Minn.2009). II. Analysis Rule 23 allows a court to award “reasonable attorney’s fees.” Fed.R.Civ.P. 23(h). Such an award is committed to the court’s sound discretion. Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1147 (8th Cir.1999). Those objecting to a class action settlement are not entitled to a fee award unless they confer a benefit on the class. See In re Cardinal Health, Inc. Sec. Litig., 550 F.Supp.2d 751, 753 (S.D.Ohio 2008). Objectors may add value to the process by: (1) transforming the fairness hearing into a truly adversarial proceeding; (2) supplying the Court with both precedent and argument to gauge the reasonableness of the settlement and lead counsel’s fee request; and (3) preventing collusion between lead plaintiff and defendants. Id. These objectors have contributed nothing. Instead, in a pleading which may charitably be described as disingenuous, Objectors’ Counsel argue they assisted the Court in finding class counsel’s fee request unreasonable. They claim their efforts convinced the Court to reduce class counsel’s fee from $110 million to $64.8 million. They have the temerity to suggest they are the ones who saved the class $45 million in attorney fees, entitling them to a six-figure fee of their own. Their suggestion is laughable. If the Court may be permitted an egregious paraphrase of Winston S. Churchill: Seldom in the field of securities litigation was so little owed by so many to so few. Objectors’ Counsel make “outlandish fee requests in return for doing virtually nothing.” In re Cardinal Health, 550 F.Supp.2d at 753. And nothing is the quantity of assistance they have provided to the Court and the class. Their goal was, and is, to hijack as many dollars for themselves as they can wrest from a negotiated settlement. Objectors’ eight-page-long, two-week-late pleading presented no facts, offered no law, and raised no argument upon which the Court relied in its deliberation or ruling concerning class" }, { "docid": "8414618", "title": "", "text": "and \"irrelevant or simply incorrect”); In re Royal Ahold N.V. Sec. & ERISA Litig., 461 F.Supp.2d 383, 386 (D.Md.2006) (noting that Pentz is a professional objector who “attached himself” to a plaintiff and holding that his objection was \"not well reasoned and was not helpful.”); Taubenfeld v. AON Corp., 415 F.3d 597, 599 (7th Cir.2005) (faulting Pentz for failing to articulate his client’s argument and putting forth “conclusory assertions” in his client’s written objection). . See Notice of Pendency at 8. . See PL Mem. at 25. . See Notice of Pendency at 8. . See id. at 14. . See id. at 14-15. . See id. at 15. . See id. . See, e.g., 7/6/09 Objection of Erin Hall Meade (“The amount of settlement monies paid out to damaged sharesholders relative to the amount paid out to attorneys seems disproportionately small.... For the paltry amount I would receive, it is not worthwhile for me to fill out the required paperwork.”); 7/17/09 Objection of Greg Linden (“For investors with 1000 or less shares, the [] burden of filing the documentation exceeds the expected payment from the settlement.”); 7/28/09 Objection of Tomaz Slivnik (“In my own case, by the time I have read all the paperwork, paid for postage and bank charges, I have spent the entire amount of the proposed compensation and then some.”). . See Notice of Pendency at 14. . See id. . See id. . See 15 U.S.C. § 78u-4(a)(4). . Id. . In re Merrill Lynch & Co., Inc. Research Reports Sec., No. 02 MDL 1484, 2007 WL 313474, at *25 (S.D.N.Y. Feb. 1, 2007) (quoting In re KeySpan Corp. Sec. Litig., No. 01 Civ. 5852, 2005 WL 3093399, at *21 (E.D.N.Y. Sept. 30, 2005)). Accord In re AMF Bowling, 334 F.Supp.2d 462, 470 (S.D.N.Y.2004) (\"There is no assertion that either [class representative] lost time at work or gave up employer-granted vacation time. Neither cites to lost sales commissions nor missed business opportunities.”). . See Kessler PSLRA Decl. ¶ 3. . See id. ¶ 4. . See id. . See id. . See, e.g., 8/13/09 Declaration" }, { "docid": "8414616", "title": "", "text": "6-7 (quoting Desai v. Deutsche Bank Sec. Ltd., 573 F.3d 931, 940-41 (9th Cir.2009)). . See In re Initial Pub. Offering Sec. Litig., 260 F.R.D. at 105-06. . See Baum, Hart, and Shadley Objection at 7-8. . See Affiliated Ute, 406 U.S. at 133-34, 92 S.Ct. 1456. . See id. at 137, 92 S.Ct. 1456. . See id. at 148-49, 92 S.Ct. 1456. . Id. at 153, 92 S.Ct. 1456. . Id. . See Am. Master Allegations ¶¶ 32, 36, 86. . See id. ¶¶ 33, 35. . If the Circuit has given any indication, it is that the Affiliated Ute presumption is available in omissions cases where the plaintiff alleges that the defendant failed to disclose the price manipulation. See, e.g., Black v. Finantra Capital, Inc., 418 F.3d 203, 209 (2d Cir.2005) (in a price manipulation case, indicating that the plaintiff may rely on the Affiliated Ute presumption because defendants had failed to disclose the scheme but that in any event he was entitled to the Basic presumption and that defendants had presented insufficient evidence that he had not relied on the price when purchasing the stock). . See 8/4/09 Objection of David Murray and Jackie Pio (\"While manageability may no longer be a concern in a settlement context since there will be no trial, the reasons that led the Second Circuit to reverse certification — reliance, causation, and ascertainability — are not eliminated by the settlement.”); 8/10/09 Objection of Timothy Sears (\"[T]he class certification will likely be reversed by the Second Circuit as it did in [Miles I], This settlement has not eliminated the issues that led to reversal of certification in Miles: reliance, causation and ascertainability.”). Plaintiffs note that the counsel that represent these objectors are professional objectors. For instance, they inform the Court that attorney John Pentz, who filed the objection on behalf of David Murray and Jackie Pio, has been criticized by courts for his canned objections. See In re AOL Time Warner ERISA Litig., No. 02 Civ. 8853, 2007 WL 4225486, at *3 (S.D.N.Y. Nov. 28, 2007) (calling Pentz and another attorney’s arguments “counterproductive”" }, { "docid": "19301468", "title": "", "text": "Sec. Litig., No. 02 Civ. 3013(LAK), 2007 WL 1294377, at *8 (S.D.N.Y. May 2, 2007) (internal quotations omitted). Applying the Goldberger factors, this Court concludes that a total attorneys’ fee of $51,250,000 is reasonable and appropriate. This represents a recovery of approximately 15.25% of the Fund without interest and when cross-checked against the loadstar results in a 1.6 multiplier. This award should adequately compensate Class Counsel for their time and effort, the risks they faced in this case, and the high quality of their representation, and is within the range of awards in “mega-fund” cases. See, e.g., Carlson, 596 F.Supp.2d at 413-14 (awarding 16% of $750 million fund); In re Air Cargo Shipping Serv. Antitrust Litig., 06 MDL 1775(JG), 2009 WL 3077396, at *16 (E.D.N.Y. Sept. 25, 2009) (awarding 15% of $85 million fund); In re Qwest Commc’n Int'l Secs. Litig., No. 01-cv-01451-REB-CBS, 2006 U.S. Dist. LEXIS 71267 at *23 (D.Colo. Sept. 29, 2006) (awarding 15% of $400 million fund); In re Freddie Mac Sec. Litig., No. 03 Civ. 4261(JES), slip op., at 1 (S.D.N.Y. Oct. 27, 2006) (awarding 20% of a $410 million fund). A number of the objectors direct their fire at the magnitude of the attorney’s fee award. Many of those objectors asked that the Court audit Class Counsel’s loadstar and reduce the fee. See United States ex rel. Miller v. Bill Harbert Int’l Const. Inc., 601 F.Supp.2d 45, 50-51 (D.D.C.2009) (“Culling through the minutiae of the time records each time a fee petition is submitted in this case would be impossible ‘lest [the Court] abdicate the remainder of its judicial responsibilities for an indefinite period.’ ” (quoting Cobell v. Norton, 407 F.Supp.2d 140, 166 (D.D.C.2005))). That is simply impracticable here and not necessary in light of the Court’s use of the percentage of recovery method. See Gulf/Cities Serv., 142 F.R.D. at 596-97. There can little doubt that the effort expended by Class Counsel in this litigation was significant and of the highest quality. Moreover, this Court’s downward adjustment from Class Counsel’s original fee request will redound to the benefit of the Class. The estimated payments to" }, { "docid": "3355722", "title": "", "text": "Counsel argue they assisted the Court in finding class counsel’s fee request unreasonable. They claim their efforts convinced the Court to reduce class counsel’s fee from $110 million to $64.8 million. They have the temerity to suggest they are the ones who saved the class $45 million in attorney fees, entitling them to a six-figure fee of their own. Their suggestion is laughable. If the Court may be permitted an egregious paraphrase of Winston S. Churchill: Seldom in the field of securities litigation was so little owed by so many to so few. Objectors’ Counsel make “outlandish fee requests in return for doing virtually nothing.” In re Cardinal Health, 550 F.Supp.2d at 753. And nothing is the quantity of assistance they have provided to the Court and the class. Their goal was, and is, to hijack as many dollars for themselves as they can wrest from a negotiated settlement. Objectors’ eight-page-long, two-week-late pleading presented no facts, offered no law, and raised no argument upon which the Court relied in its deliberation or ruling concerning class counsel’s motion for fees. Indeed, the Court expressly rejected the lion’s share of objectors’ arguments directed to the use of paralegals and contract attorneys. See UnitedHealth, 643 F.Supp.2d at 1105. Objectors’ request and their motion ill-befit attorneys admitted to the bar. Accordingly, the Court holds, as a matter of fact and law, objectors have conferred no benefit whatsoever on the class or on the Court. Objectors’ Counsel are entitled to an award equal to their contribution ... nothing. III. Conclusion IT IS ORDERED that the motion [Docket No. 846] is denied. . Objectors’ Counsel maintain their “lodestar” is “approximately $74,500,” and request a multiplier of 2.5. [Docket No. 846, at ¶ 8.] The Court considers it preposterous that any legitimate lawyer would charge $74,500 to prepare an eight-page submission, and submit it tardy to boot." }, { "docid": "20436403", "title": "", "text": "Litig, No. 96 Civ. 1262, 2002 WL 31663577, at *27 (S.D.N.Y. Nov. 26, 2002) (a “multiplier of 2.09 is at the lower end of the range of multipliers awarded by courts within the Second Circuit”); see, e.g., Steiner v. Am. B’casting Co., Inc., 248 Fed.Appx. 780, 783 (9th Cir.2007) (multiplier of 6.85 “falls well within the range of multipliers that courts have allowed”); Ramirez v. Lovin’ Oven Catering Suffolk, Inc., No. 11 Civ. 520, 2012 WL 651640, at *4 (S.D.N.Y. Feb. 24, 2012) (granting attorneys’ fees equal to 6.8 times lodestar ); Davis v. J.P. Morgan Chase & Co., 827 F.Supp.2d 172, 184-86 (W.D.N.Y.2011) (awarding multiplier of 5.3 in wage and hour class action); Buccellato v. AT & T Operations, Inc., No. 10 Civ. 463, 2011 WL 3348055, at *2 (N.D.Cal. Jun. 30, 2011) (awarding multiplier of 4.3 in wage and hour class action); New England Carpenters Health Benefits Fund v. First Databank, Inc., No. 05 Civ. 11148, 2009 WL 2408560, at *2 (D.Mass. Aug. 3, 2009) (awarding multiplier of 8.3); In re Enron Corp. Sec., Derivative & ERISA Litig., 586 F.Supp.2d 732, 803 (S.D.Tex.2008) (awarding multiplier of 5.2); In re Cardinal Health Inc. Sec. Litig., 528 F.Supp.2d 752, 768 (S.D.Ohio 2007) (awarding multiplier of six); In re Rite Aid Sec. Litig., 362 F.Supp.2d 587 (E.D.Pa.2005) (awarding multiplier of seven); Maley v. Del Global Techs. Corp., 186 F.Supp.2d 358, 371 (S.D.N.Y.2002) (“modest multiplier” of 4.65 in wage and hour class action was “fair and reasonable”); In re RJR Nabisco, Inc. Sec. Litig., No. 88 Civ. 7905, 1992 WL 210138, at *5 (S.D.N.Y. Aug. 24, 1992) (awarding multiplier of 6); Cosgrove v. Sullivan, 759 F.Supp. 166,167 n. 1 (S.D.N.Y.1991) (awarding multiplier of 8.74). Here, the lodestar sought by Class Counsel, approximately 6.3 times, falls within the range granted by courts and equals the one-third percentage being sought. While this multiplier is near the higher end of the range of multipliers that courts have allowed, this should not result in penalizing plaintiffs’ counsel for achieving an early settlement, particular where, as here, the settlement amount is substantial. See Wal-Mart Stores, 396 F.3d" }, { "docid": "19301475", "title": "", "text": "risk of collusion over attorneys’ fees and the terms of settlement generally, and [ ] this participation is encouraged by permitting lawyers who contribute materially to the proceeding to obtain a fee.” Mirfasihi v. Fleet Mortg., Corp., 551 F.3d 682, 687 (7th Cir. 2008) (quoting Reynolds v. Beneficial National Bank, 288 F.3d 277, 288 (7th Cir. 2002)). “[OJbjectors have a valuable and important role to perform in policing class action settlements,” In re Indep. Energy Holdings PLC Sec. Litig., 00 Civ. 6689(SAS), 2003 WL 22801724, at *1 (S.D.N.Y. Nov. 24, 2003) (citing White v. Auerbach, 500 F.2d 822, 828 (2d Cir.1974)), and therefore “are entitled to an allowance as compensation for attorneys’ fees and expenses where a proper showing has been made that the settlement was improved as a result of their efforts,” White, 500 F.2d at 828. “In the absence of a showing that objectors substantially enhanced the benefits to the class under the settlement ... they are not entitled to fees.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1052 (9th Cir.2002). “The trial judge has broad discretion in deciding whether, and in what amount, attorneys’ fees should be awarded, since he is in the best position to determine whether the participation of objectors assisted the court and enhanced the recovery.” White. 500 F.2d at 828. The objectors in this case did little to aid this Court. While there were modifications to the notice program, these modifications were entirely on the Court’s initiative and devised by the Special Master and the parties. As for fees, the objections were so general and repetitive that they were of no assistance to an area with which this Court is intimately familiar. See In re Excess Value Ins. Coverage Litig., 598 F.Supp.2d 380, 393 (S.D.N.Y.2005) (“Fundamentally, the Court needed little or no assistance from the Objectors in determining that Class Counsel’s fee application should be ... tailored to the actual benefit received by the Class.”); In re Anchor Secs. Litig., No. 88 Civ. 3024(CPS), 1991 WL 53651 (E.D.N.Y. Apr.8, 1991) (denying fees to objectors’ counsel because they “did not assist [the court] in" }, { "docid": "3355720", "title": "", "text": "ORDER JAMES M. ROSENBAUM, District Judge. The remoras are loose again. The Court has received a motion from attorneys Edward Siegel, Edward Cochran, Stuart Yoes, and Scott Browne (styling themselves “Objectors’ Counsel”), seeking an award of fees. Their motion is emphatically denied. I. Background On December 22, 2008, the Court preliminarily approved a proposed settlement in this matter. The class received notice and was advised objections were due February 17, 2009. On that date, Objectors’ Counsel, representing UnitedHealth shareholders Ernest J. Browne and Bruce Botchik, filed a single page document, later identified as an exhibit to their objections, purportedly documenting Mr. Botchik’s UnitedHealth stock holdings. [Docket No. 828.] Objectors’ remaining submissions were untimely. On February 18, 2009, they filed a single-paragraph Notice identifying their prior filing as Exhibit A to their objections [Docket No. 829]. No actual objections were filed until two weeks later, on March 4, 2009 [Docket No. 834], Their late submission objected to class counsel’s request for $110 million in attorney’s fees and to reimbursement of class counsel’s expenses — which class counsel were not seeking. On August 11, 2009, this Court approved the class action settlement, and awarded class counsel nearly $64.8 million in attorney’s fees. See In re UnitedHealth Group Incorporated PSLRA Litigation, 643 F.Supp.2d 1094, 1106 (D.Minn.2009). II. Analysis Rule 23 allows a court to award “reasonable attorney’s fees.” Fed.R.Civ.P. 23(h). Such an award is committed to the court’s sound discretion. Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1147 (8th Cir.1999). Those objecting to a class action settlement are not entitled to a fee award unless they confer a benefit on the class. See In re Cardinal Health, Inc. Sec. Litig., 550 F.Supp.2d 751, 753 (S.D.Ohio 2008). Objectors may add value to the process by: (1) transforming the fairness hearing into a truly adversarial proceeding; (2) supplying the Court with both precedent and argument to gauge the reasonableness of the settlement and lead counsel’s fee request; and (3) preventing collusion between lead plaintiff and defendants. Id. These objectors have contributed nothing. Instead, in a pleading which may charitably be described as disingenuous, Objectors’" }, { "docid": "157991", "title": "", "text": "no evidence that the interests of the Settlement Class Members who can be identified and of the Settlement Class Members who cannot be identified diverge, or that the cy pres distribution represents a diversion of Settlement Class funds to charity, and their arguments in this regard are unpersuasive. . As Plaintiffs noted both in their pleadings, see Plaintiffs' Response to Objections to Motion for Final Approval of Settlement and Class Counsel's Application for Service Awards and Attorneys' Fees [DE #2030] at 20-22, and at the Final Approval Hearing, most if not all of the Objections are motivated by things other than a concern for the welfare of the Settlement Class. Instead, they have been brought by professional objectors and others whose sole purpose is to obtain a fee by objecting to whatever aspects of the Settlement they can latch onto. The Court agrees with the court in Barnes v. Fleet Boston Fin. Corp., 2006 U.S. Dist. LEXIS 71072, at *3-4 (D.Mass. Aug. 22, 2006), that, \"[Professional objectors can levy what is effectively a tax on class action settlements, a tax that has no benefit to anyone other than to the objectors. Literally nothing is gained from the cost: Settlements are not restructured and the class, on whose benefit the appeal is purportedly raised, gains nothing.” See also In re United-Health Group PSLRA Litig., 643 F.Supp.2d 1107, 1108-09 (D.Minn.2009); O'Keefe v. Mercedes-Benz USA, LLC, 214 F.R.D. 266, 295 n. 26 (E.D.Pa.2003); Snell v. Allianz Life Ins. Co. of N. Am., 2000 WL 1336640, at *9 (D.Minn. Sept. 8, 2000); Shaw v. Toshiba Am. Info. Sys., Inc., 91 F.Supp.2d 942, 975 (E.D.Tex.2000). As Professor Issacharoff explained, \"[t]he unfortunate game is to lodge pro forma objections at the trial stage, then negotiate a private resolution in order to drop the invariable notice of appeal. Once the case has progressed beyond the trial court, there is no longer any accountability for side payments to objectors' counsel, and the game is on.” Decl. of Prof. Samuel Issacharoff [DE # 1885-7], ¶ 33. The Court has nonetheless considered their objections on the merits, and rejects them" }, { "docid": "2304260", "title": "", "text": "fiduciary responsibilities to the Class as a whole”); In re Twinlab Corp. Sec. Litig., 187 F.Supp.2d 80, 88 (E.D.N.Y.2002) (noting that Cole filed a sixteen-page objection which he later withdrew after plaintiffs’ counsel agreed to pay him an amount \"considerably more than [what] many, if not most, of the members of the class” received). . Counsel for objectors West, Brickman, McKinney, and Sullivan also submitted opposition to the motion for final approval on July 12, 2010 based upon a claim that L.Civ.R. 7.1 governed the deadline for a response. {Dewey, Docket Entry No. 230.) Their brief will not be considered. First, the objectors had a time frame to submit their positions and the July 12, 2010 brief was filed after the deadline. Second, the deadlines for opposition to the motion for attorneys’ fees and final approval were June 29, 2010, and June 28, 2010, respectively, not July 12, 2010. (Dewey, Docket Entry No. 178 ¶ 15; Docket Entry No. 185 at 2; L. Civ. R. 7.1 (setting forth time frames for opposition Briefs that apply only if a court order does not modify them)). Since an order governed the briefing schedule, it supersedes Rule 7.1(d)(2) and as a result the West Objectors' July 12, 2010 brief is untimely. . The thirty-five class members objecting to the merits of the suit are: Alan E. Peters, Anthony Joseph Ganino, Barbara Stevens, Bob Ellson, Brenda C. Rogers, Bruce Crain, Chris Hurdleston, Clyde Hart, Dennis D. Goodwin, Elliott L. Grosh, Frank R. Bacque, Gary Kueffer, Gene Zarwell, Georg H. Strasser, George H. Kuper, Gilbert Ribal, Greg Hammaren, Jacob Allen Fritz, Jill E. Knack, Jim Herman, Jocelyn M. Wychgram, John Clay, John Sabol, Kay Beth B. Roberts, Lewis F. Staples, Marianne Lisenko, Matthew Phillips, Maxine Hart, Nicholas Bentivegna, P. Aarne Vesilind, Robert D. Hilton, Daniel C. Hauck, Glenn Groeschel, and William G. Cottrell. One of the thirty-five objectors submitted concerns anonymously, and the Court has carefully considered those objections as well. . One objector has the mistaken impression that she would be liable for attorneys' fees under the settlement agreement. Since this is not the" }, { "docid": "2304259", "title": "", "text": "Court” and calling their pleadings \"disingenuous,” \"outlandish,” \"laughable,” and an attempt to \"hijack as many dollars as they can wrest from a negotiated settlement”); Perez v. Asurion Corp., Civ. No. 06-20734, 2007 WL 2591180, at *8 (S.D.Fla. Aug. 8, 2007) (stating that the court \"did not find any of the papers filed by [Siegel] to be particularly helpful”); In re AOL Time Warner ERISA Litig., Civ. No. 02-8853, 2007 WL 4225486, at *3 (S.D.N.Y. Nov. 28, 2007) (calling Pentz and Tsai’s arguments \"counterproductive” and \"irrelevant or simply incorrect”); In re Royal Ahold N.V. Sec. & ERISA Litig., 461 F.Supp.2d 383, 386 (D.Md.2006) (noting that Pentz is a professional objector who attached himself to a plaintiff and holding that his objection was \"not well reasoned and was not helpful”); In re Rent-Way Sec. Litig., 305 F.Supp.2d 491, 520 n. 12 (W.D.Pa.2003) (denying objector Douglas A. Cole's application for attorneys' fees and noting an accusation by the plaintiffs' attorney that Cole tried to \"strike a separate, more favorable settlement for [his] client in derogation of [lead counsel's] fiduciary responsibilities to the Class as a whole”); In re Twinlab Corp. Sec. Litig., 187 F.Supp.2d 80, 88 (E.D.N.Y.2002) (noting that Cole filed a sixteen-page objection which he later withdrew after plaintiffs’ counsel agreed to pay him an amount \"considerably more than [what] many, if not most, of the members of the class” received). . Counsel for objectors West, Brickman, McKinney, and Sullivan also submitted opposition to the motion for final approval on July 12, 2010 based upon a claim that L.Civ.R. 7.1 governed the deadline for a response. {Dewey, Docket Entry No. 230.) Their brief will not be considered. First, the objectors had a time frame to submit their positions and the July 12, 2010 brief was filed after the deadline. Second, the deadlines for opposition to the motion for attorneys’ fees and final approval were June 29, 2010, and June 28, 2010, respectively, not July 12, 2010. (Dewey, Docket Entry No. 178 ¶ 15; Docket Entry No. 185 at 2; L. Civ. R. 7.1 (setting forth time frames for opposition Briefs that apply" }, { "docid": "19301467", "title": "", "text": "2003) (awarding 28% of a $300 million fund); In re Priceline.com. Inc. Sec. Litig., No. 00-1884(AVC), 2007 WL 2115592, at *5 (D.Conn. July 20, 2007) (awarding 30% of an $80 million fund) with Goldberger. 209 F.3d 43 (affirming the district court’s award of 4% of a $54 million settlement); In re Air Cargo Shipping Serv. Antitrust Litig., 06 MDL 1775(JG), 2009 WL 3077396, at *16 (E.D.N.Y. Sept. 25, 2009) (awarding 15% of $85 million fund); In re Elan Sec. Litig., 385 F.Supp.2d 363 (S.D.N.Y.2005) (awarding 12% of a $75 million settlement); Carlson v. Xerox Corp., 596 F.Supp.2d 400, 413-14 (D.Conn.2009) (awarding 16% of $750 million fund); Denney v. Deutsche Bank, 230 F.R.D. 317, 352-54 (S.D.N.Y.2005) (awarding 15.5% of $81.5 million fund); In re Bristol-Myers Squibb Sec. Litig., 361 F.Supp.2d 229, 236 (S.D.N.Y.2005) (awarding 3% of $300 million settlement). 6. Public Policy Considerations While public policy favors “the award of reasonable attorney’s fees,” courts must also “guard against providing a monetary windfall to class counsel to the detriment of the plaintiff class.” In re NTL Inc. Sec. Litig., No. 02 Civ. 3013(LAK), 2007 WL 1294377, at *8 (S.D.N.Y. May 2, 2007) (internal quotations omitted). Applying the Goldberger factors, this Court concludes that a total attorneys’ fee of $51,250,000 is reasonable and appropriate. This represents a recovery of approximately 15.25% of the Fund without interest and when cross-checked against the loadstar results in a 1.6 multiplier. This award should adequately compensate Class Counsel for their time and effort, the risks they faced in this case, and the high quality of their representation, and is within the range of awards in “mega-fund” cases. See, e.g., Carlson, 596 F.Supp.2d at 413-14 (awarding 16% of $750 million fund); In re Air Cargo Shipping Serv. Antitrust Litig., 06 MDL 1775(JG), 2009 WL 3077396, at *16 (E.D.N.Y. Sept. 25, 2009) (awarding 15% of $85 million fund); In re Qwest Commc’n Int'l Secs. Litig., No. 01-cv-01451-REB-CBS, 2006 U.S. Dist. LEXIS 71267 at *23 (D.Colo. Sept. 29, 2006) (awarding 15% of $400 million fund); In re Freddie Mac Sec. Litig., No. 03 Civ. 4261(JES), slip op., at 1 (S.D.N.Y." } ]

[ { "docid": "22389381", "title": "", "text": "strictly, not affecting them until there is an attempt to make disposition of them within the State. To give them more immunity than this is to give them more immunity than more tangible articles are given, they having no exemption from regulations the purpose of which is to prevent fraud or deception. Such regulations affect ■ interstate commerce in them only incidentally. Hatch v. Reardon, 204 U. S. 152; Ware & Leland v. Mobile County, 209 U. S. 405; Engel v. O'Malley, 219 U. S. 128; Brodnax v. Missouri, id. 285; Banker Brothers Co. v. Pennsylvania, 222 U. S. 210; Savage v. Jones, 225 U. S. 501; Standard Stock Food Co. v. Wright, id. 540; Trading Stamp Cases, supra. With these, cases International Textbook Co. v. Pigg, 217 U. S. 91; Buck Stove & Range Co. v. Vickers, 226 U. S. 205, and the Lottery Case, 188 U. S. 321, are not in discordance. We might, indeed, ask, When do the designated securities cease migration in interstate commerce and settle to the jurisdiction of the State? Material things, choses in possession, pass out of interstate commerce when they emerge from the original package. Do choses in action have a longer immunity? It is to be remembered that though they may differ in manner of transfer, they are in the same form in the hands of the purchaser as they are in the hands of the seller, and in the hands of both as they are brought into the State. We ask again, Do they never pass out of interstate commerce? Have they always the freedom of the State? Is there no point of time at which the State can expose the evil that they may mask? Is anything more necessary for the supremacy of the national power than that they be kept free when in actual trans portation, subjected to the jurisdiction of the State only when they are attempted to be sold to the individual purchaser? The questions are pertinent, the answer to them one way or the other, of consequence; but we may pass them, for regarding the" } ]

[ { "docid": "23079295", "title": "", "text": "of one term of a bargain more than another if it is properly the subject of regulation. No one has yet attempted to say upon what basis of history, principles of government, law or logic, it is within due process to regulate the hours and conditions of labor of women, see Muller v. Oregon, 208 U. S. 412; Riley v. Massachusetts, 232 U. S. 671, 679; Hawley v. Walker, 232 U. S. 718; Miller v. Wilson, 236 U. S. 373; Bosley v. McLaughlin, 236 U. S. 385, and of men, Bunting v. Oregon, 243 U. S. 426, and the time and manner of payment of the wage, McLean v. Arkansas, supra; Knoxville Iron Co. v. Harbison, supra; Patterson v. Bark Eudora, 190 U. S. 169; compare New York Central R. Co. v. White, 243 U. S. 188; Arizona Employers’ Liability Cases, 250 U. S. 400, but that regulation of the amount of the wage passes beyond the constitutional limitation; or to say upon what theory the amount of a wage is any the less the subject of regulation in the public interest than that of insurance premiums, German Alliance Insurance Co. v. Lewis, supra, or of the commissions of insurance brokers, O’Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U. S. 251, or of the charges of grain elevators, Munn v. Illinois, supra; Brass v. Stoeser, supra, or of the price which the farmer receives for his milk, or which the wage earner pays for it, Nebbia v. New York, supra. These considerations were developed at length in Tyson & Bros. v. Banton, 273 U. S. 418, 447 et seq., and in Ribnik v. McBride, 277 U. S. 350, 359, et seq., and need not be further elaborated now. It is true that the Court rejected them there, but it later accepted and applied them as the basis of decision in O’Gorman & Young, Inc. v. Hartford Fire Ins. Co., supra; Nebbia v. New York, supra; Hegeman Farms Corp. v. Baldwin, 293 U. S. 163; Borden’s Farm Products Co. v. Ten Eyck, 297 U. S. 251. Both precedent," }, { "docid": "22658516", "title": "", "text": "packages in which goods are sold, Armour & Co. v. North Dakota, 240 U.S. 510; regulating sales in bulk of a stock in trade, Lemieux v. Young, 211 U.S. 489; Kidd, Dater & Price Co. v. Musselman Grocer Co., 217 U.S. 461; sales of stocks and bonds, Hall v. Geiger-Jones Co., 242 U.S. 539; Merrick v. Halsey & Co., 242 U.S. 568; requiring fluid milk offered for sale to be tuberculin tested, Adams v. Milwaukee, 228 U.S. 572; regulating sales of grain by actual weight,' and abrogating exchange rules to the contrary, House v. Mayes, 219 U.S. 270; subjecting state banks to assessments for a state depositors’ guarantee fund, Noble State Bank v. Haskell, 219 U.S. 104. Prescribing hours of labor in particular occupations, Holden v. Hardy, 169 U.S. 366; B. & O. R. Co. v. I.C.C., 221 U.S. 612; Bunting v. Oregon, 243 U.S. 426; prohibiting child labor, Sturges & Burn Co. v. Beauchamp, 231 U.S. 320; forbidding night work by women, Radice v. New York, 264 U.S. 292; reducing hours of labor for Women, Muller v. Oregon, 208 U.S. 412; Riley v. Massachusetts, 232 U.S. 671; Miller v. Wilson, 236 U.S. 373; fixing the time for payment of seamen’s wages, Patterson v. Bark Eudora, 190 U.S. 169; Strathearn S.S. Co. v. Dillon, 252 U.S. 348; of wages of railroad employes, St. Louis, I. M. & St. P. Ry. Co. v. Paul, 173 U.S. 404; Erie R. Co. v. Williams, 233 U.S. 685; regulating the redemption of store orders issued for wages, Knoxville Iron Co. v. Harbison, 183 U.S. 13; Keokee Consolidated Coke Co. v. Taylor, 234 U.S. 224; regulating the assignment of wages, Mutual Loan Co. v. Martell, 222 U.S. 225; requiring payment for coal mined on a fixed basis other than that usually practiced, McLean v. Arkansas, 211 U.S. 539; Rail & River Coal Co. v. Yaple, 236 U.S. 338; establishing a system of compulsory workmen’s compensation, New York Central R. Co. v. White, 243 U.S. 188; Mountain Timber Co. v. Washington, 243 U.S. 219. Sales of stock or grain on margin, Booth v. Illinois, 184 U.S." }, { "docid": "22955995", "title": "", "text": "as in the other. To say that there is constitutional power to regulate a business or a particular use of property because of the public interest in the welfare of a class peculiarly affected, and to deny such power to regulate price for the accomplishment of the same end, when fhat alone appears to be an appropriate and effective remedy, is to make- a distinction based, on no real economic difference, and for which I can find no warrant in the Constitution itself nor any justification in thé opinions of this Court. The price paid for property or services is only one of the terms in a bargain; the effect on the parties is similar whether the restriction on the power to contract affects the price, or the goods or services sold. Apart from the cases involving the historic public-callings, immemorially subject to the closest regulation, this Court has sustained regulations of the price in cases where the legislature fixed the charges which grain elévators, Brass v. Stoeser, supra; Budd v. New York, 143 U. S. 517, and insurance' companies might make, German Alliance Insurance Co. v. Kansas, supra; or required miners to be paid per ton of coal unscreened instead of. screened, McLean v. Arkansas, supra; Rail Coal Co. v. Ohio Industrial Commission, 236 U. S. 338; or required employers who paid their men in store orders to redeem them in cash, Knoxville Iron Co. v. Harbison, supra; Dayton Coal Co. v. Barton, 183 U. S. 23; Keokee Coke Co. v. Taylor, 234 U. S. 224; or fixed the fees chargeable by attorneys appearing for injured employees before workmen’s compensation commissions, Yeiser v. Dysart, 267 U. S. 540; or fixed the rate of pay for overtime work, Bunting v. Oregon, 243 U. S. 426; or fixed the time within which the services of employees must .be paid for, Erie R. R. v. Williams, supra; or established maximum rents, Block v. Hirsh, 256 U. S. 135; Marcus Brown Co. v. Feldman, 256 U. S. 170; or fixed the maximum rate of interest chargeable on loans, Griffith v. Connecticut, 218 U." }, { "docid": "23079292", "title": "", "text": "an appropriate means for dealing with any of those matters of public concern with which it is the business of government to deal. There is grim irony in . speaking of the freedom of contract of those who, because of their economic necessities, give their services for less than is needful to keep body and soul together. But if this is freedom of contract no one has ever denied that it is freedom which may be restrained, notwithstanding the Fourteenth Amendment, by a statute passed in the public interest. In many cases this Court has sustained the power of legislatures to prohibit or restrict the terms of a contract, including the price term, in order to accomplish what the legislative body may reasonably consider a public purpose. They include cases, which have neither been overruled nor discredited, in which the sole basis of regulation was the fact that circumstances, beyond the control of the parties, had so seriously curtailed the regulative power' of competition as to place buyers or sellers at a disadvantage in the bargaining struggle, such that a legislature might reasonably have contemplated serious consequences to the community as a whole and have sought to avoid them by regulation of the terms of the contract. Munn v. Illinois, 94 U. S. 113; Brass v. Stoeser, 153 U. S. 391; German Alliance Insurance Co. v. Lewis, 233 U. S. 389, 409; Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252; Block v. Hirsh, 256 U. S. 135; Marcus Brown Co. v. Feldman, 256 U. S. 170; Levy Leasing Co. v. Siegel, 258 U. S. 242; Nebbia v. New York, 291 U. S. 502; see also, Frisbie v. United States, 157 U. S. 160; Knoxville Iron Co. v. Harbison, 183 U. S. 13; McLean v. Arkansas, 211 U. S. 539; Mutual Loan Co. v. Martell, 222 U. S. 225. No one doubts that the presence in the community of a large number of those compelled by economic necessity to accept a wage less than is needful for subsistence is a matter of grave public concern, the more so" }, { "docid": "22658515", "title": "", "text": "Welch v. Swasey, 214 U.S. 91; Hadacheck v. Sebastian, 239 U.S. 394; Reinman v. Little Rock, 237 U.S. 171. Euclid v. Ambler Realty Co., 272 U.S. 365; Zahn v. Board of Public Works, 274 U.S. 325; Gorieb v. Fox, 274 U.S. 603. Yick Wo v. Hopkins, 118 U.S. 356, 369. Terrace v. Thompson, 263 U.S. 197; Webb v. O’Brien, 263 U.S. 313. Forbidding transmission of lottery tickets, Lottery Case, 188 U.S. 321; transportation of prize fight films, Weber v. Freed, 239 U.S. 325; the shipment of adulterated food, Hipolite Egg Co. v. United States, 220 U.S. 45; transportation of women for immoral purposes, Hoke v. United States, 227 U.S. 308; Caminetti v. United States, 242 U.S. 470; transportation of' intoxicating liquor, Clark Distilling Co. v. Western Maryland Ry. Co., 242 U.S. 311; requiring the public weigh ing of grain, Merchants Exchange v. Missouri, 248 U.S. 365; regulating the size and weight of loaves of bread, Schmidinger v. Chicago, 226 U.S. 578; Petersen Baking Co. v. Bryan, 290 U.S. 570; regulating the size and character of packages in which goods are sold, Armour & Co. v. North Dakota, 240 U.S. 510; regulating sales in bulk of a stock in trade, Lemieux v. Young, 211 U.S. 489; Kidd, Dater & Price Co. v. Musselman Grocer Co., 217 U.S. 461; sales of stocks and bonds, Hall v. Geiger-Jones Co., 242 U.S. 539; Merrick v. Halsey & Co., 242 U.S. 568; requiring fluid milk offered for sale to be tuberculin tested, Adams v. Milwaukee, 228 U.S. 572; regulating sales of grain by actual weight,' and abrogating exchange rules to the contrary, House v. Mayes, 219 U.S. 270; subjecting state banks to assessments for a state depositors’ guarantee fund, Noble State Bank v. Haskell, 219 U.S. 104. Prescribing hours of labor in particular occupations, Holden v. Hardy, 169 U.S. 366; B. & O. R. Co. v. I.C.C., 221 U.S. 612; Bunting v. Oregon, 243 U.S. 426; prohibiting child labor, Sturges & Burn Co. v. Beauchamp, 231 U.S. 320; forbidding night work by women, Radice v. New York, 264 U.S. 292; reducing hours of labor for" }, { "docid": "23079296", "title": "", "text": "subject of regulation in the public interest than that of insurance premiums, German Alliance Insurance Co. v. Lewis, supra, or of the commissions of insurance brokers, O’Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U. S. 251, or of the charges of grain elevators, Munn v. Illinois, supra; Brass v. Stoeser, supra, or of the price which the farmer receives for his milk, or which the wage earner pays for it, Nebbia v. New York, supra. These considerations were developed at length in Tyson & Bros. v. Banton, 273 U. S. 418, 447 et seq., and in Ribnik v. McBride, 277 U. S. 350, 359, et seq., and need not be further elaborated now. It is true that the Court rejected them there, but it later accepted and applied them as the basis of decision in O’Gorman & Young, Inc. v. Hartford Fire Ins. Co., supra; Nebbia v. New York, supra; Hegeman Farms Corp. v. Baldwin, 293 U. S. 163; Borden’s Farm Products Co. v. Ten Eyck, 297 U. S. 251. Both precedent, and, what is more important, reason, require their acceptance now. See Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405. In upholding state minimum price regulation in the milk industry, in Nebbia v. New York, supra, the Court declared, p. 537: “So far as the requirement of due process is concerned, and in the absence of other constitutional restriction, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio.” That declaration and decision should control the present case. They are irreconcilable with the decision and most that was said in the Adkins case." }, { "docid": "22955996", "title": "", "text": "S. 517, and insurance' companies might make, German Alliance Insurance Co. v. Kansas, supra; or required miners to be paid per ton of coal unscreened instead of. screened, McLean v. Arkansas, supra; Rail Coal Co. v. Ohio Industrial Commission, 236 U. S. 338; or required employers who paid their men in store orders to redeem them in cash, Knoxville Iron Co. v. Harbison, supra; Dayton Coal Co. v. Barton, 183 U. S. 23; Keokee Coke Co. v. Taylor, 234 U. S. 224; or fixed the fees chargeable by attorneys appearing for injured employees before workmen’s compensation commissions, Yeiser v. Dysart, 267 U. S. 540; or fixed the rate of pay for overtime work, Bunting v. Oregon, 243 U. S. 426; or fixed the time within which the services of employees must .be paid for, Erie R. R. v. Williams, supra; or established maximum rents, Block v. Hirsh, 256 U. S. 135; Marcus Brown Co. v. Feldman, 256 U. S. 170; or fixed the maximum rate of interest chargeable on loans, Griffith v. Connecticut, 218 U. S. 563. It has sustained restrictions on the other element in the bargain where legislatures have established maximum hours of labor for men, Holden v. Hardy, 169 U. S. 366, or for women, Muller v. Oregon, 208 U. S. 412; Hawley v. Walker, 232 U. S, 718; Riley v. Massachusetts, 232 U. S. 671; Miller v. Wilson, 236 U. S. 373; Bosley v. McLaughlin, 236 U. S. 385; on prohibited the payment of wages in advance, Patterson v. Bark Eudora, 190 U. S. 169; Strathearn S. S. Co. v. Dillon, 252 U. S. 348; or required loaves of bread to be of a certain size, Schmidinger v. Chicago, 226 U. S. 578. In each of these cases the police power of the state was held broad enough to warrant an interference with free-bargaining in cases where, despite the competition. that ordinarily attends that freedom, serious evils persisted. Similar - evils are now observed in the. conduct of employment. agencies. I see no reason why a state may not resort to the same remedy. There may" }, { "docid": "22799862", "title": "", "text": "Payment of sailors in advance may be forbidden. Patterson v. Bark Eudora, 190 U. S. 169. The size of a loaf of bread may be established. Schmidinger v. Chicago, 226 U. S. 578. The responsibility of employers to their employees may be profoundly modified. New York Central R. R. Co. v. White, 243 U. S. 188. Arizona Employers’ Liability Cases, 250 U. S. 400. Finally women’s hours of labor may be fixed; Muller v. Oregon, 208 U. S. 412; Riley v. Massachusetts, 232 U. S. 671, 679; Hawley v. Walker, 232 U. S. 718; Miller v. Wilson, 236 U. S. 373; Bosley v. McLaughlin, 236 U. S. 385; and the principle was extended to men with the allowance of a limited overtime to be paid for “ at the rate of time and one-half of the regular wage,” in Bunting v. Oregon, 243 U. S. 426. I confess that I do not understand the principle on which the power to fix a minimum for the wages of women can be denied by those who admit the power to fix a maximum for their hours of work. I fully assent to the proposition that here as elsewhere the distinctions of the law are'distinctions of degree, but I perceive no difference in the kind or degree of interference with liberty, the only matter with which we have any concern, between the one case and the other. The bargain is equally affected whichever half you regulate. Muller v. Oregon, I take it, is as good law today as it was in 1908. It will need more than the Nineteenth Amendment to convince, me that there are no differences between men and women, or that legislation cannot take those differences into account. I should not hesitate to take them into account if I thought it necessary to sustain this act. Quong Wing v. Kirkendall, 223 U. S. 59, 63. But after Bunting v. Oregon, 243 U. S. 426, I had supposed that it was not .necessary, and that Lochner v. New York, 198 U. S. 45, would be allowed, a deserved repose. This statute" }, { "docid": "23079294", "title": "", "text": "when, as has been demonstrated here, it tends to produce ill health, immorality and deterioration of the race. The fact that .at one time or another Congress and the legislatures of seventeen states, and the legislative bodies of twenty-one foreign countries, including Great Britain and its four commonwealths, have found that wage regulation, is an appropriate corrective for serious social and economic maladjustments growing out of inequality in bargaining power, precludes, for me, any assumption that it is a remedy beyond the bounds of reason. It is difficult to imagine any grounds, other than our own personal economic predilections, for saying that the contract of employment is any the less an appropriate subject of legislation than are scores of others, in dealing with which this Court has held that legislatures may curtail individual freedom in the public interest. If it is a subject upon which there is power to legislate at all, the Fourteenth Amendment makes no distinction between the methods by which legislatures may deal with it, any more than it proscribes the regulation of one term of a bargain more than another if it is properly the subject of regulation. No one has yet attempted to say upon what basis of history, principles of government, law or logic, it is within due process to regulate the hours and conditions of labor of women, see Muller v. Oregon, 208 U. S. 412; Riley v. Massachusetts, 232 U. S. 671, 679; Hawley v. Walker, 232 U. S. 718; Miller v. Wilson, 236 U. S. 373; Bosley v. McLaughlin, 236 U. S. 385, and of men, Bunting v. Oregon, 243 U. S. 426, and the time and manner of payment of the wage, McLean v. Arkansas, supra; Knoxville Iron Co. v. Harbison, supra; Patterson v. Bark Eudora, 190 U. S. 169; compare New York Central R. Co. v. White, 243 U. S. 188; Arizona Employers’ Liability Cases, 250 U. S. 400, but that regulation of the amount of the wage passes beyond the constitutional limitation; or to say upon what theory the amount of a wage is any the less the" }, { "docid": "23079284", "title": "", "text": "public interests and thus in the end destroy the very freedom of opportunity which it is designed to safeguard. We have repeatedly said that liberty of contract is a qualified and not an absolute right. “There is no absolute freedom to do as one wills or to contract as one chooses. . . . Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.” Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 567. The numerous restraints that have been sustained have often been recited. Id., p. 568. Nebbia v. New York, supra, pp. 526-528. Thus we have upheld the limitation of hours of employment in mines and smelters .(Holden v. Hardy, 169 U. S. 366); the requiring of redemption in cash of store orders or other evidences of indebtedness issued in payment of wages (Knoxville Iron Co. v. Harbison, 183 U. S. 13); the prohibition oí contracts for options to sell or buy grain or other commodities at a future time (Booth v. Illinois, 184 U. S. 425); the forbidding of advance payments to seamen-(Patterson v. Bark Eudora, 190 U. S. 169); the prohibition of contracts to pay miners employed at quantity rates upon the basis of screéned coal instead of the weight of the coal as originally produced in the mine (McLean v. Arkansas, 211 U. S. 539); the regulation of the size and weight of loaves of bread (Schmidinger v. Chicago, 226 U. S. 578; Petersen Baking Co. v. Bryan, 290 U. S. 570); the regulation of insurance rates (German Alliance Insurance Co. v. Lewis, 233 U. S. 389; O’Gorman & Young v. Hartford Insurance Co., supra); the regulation of the size and character of packages in which goods are sold (Armour & Co. v. North Dakota, 240 U. S. 510); the limitation of hours of employment in manufacturing establishments with a specified allowance of overtime payment (Bunting v. Oregon, 243 U. S. 426); the regulation of sales of stocks and bonds to prevent fraud (Hall v. Geiger-Jones Co., 242 U. S. 539);" }, { "docid": "22079502", "title": "", "text": "in loaves by the use of wax-paper or other means. . . . (p. 680.) The act of the legislature does not fix prices but leaves bakers free to make reasonable charges for bread wrapped in inexpensive wax-paper for its preservation in transportation and in the markets. . . . Precautions to retard evaporation of moisture in bread for the purpose of keeping it in a good state of preservation for 24 hours may be required as an incidental result of a police regulation establishing standards of maximum weights for loaves of bread. Palatableness, a quality demanded by the public, is affected by excessive evaporation, if food value is not. . . . The evidence does not prove that, if reasonable means or precautions are taken by plaintiffs and other bakers to retard evaporation, they cannot comply with the act of the legislature, or that the regulation is unreasonable.” Undoubtedly, the police power of the State may be exerted to protect purchasers from imposition by sale of short weight loaves. Schmidinger v. Chicago, 226 U. S. 578, 588. Many laws have been passed for that purpose. But a State may not, under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them. Lawton v. Steele, 152 U. S. 133, 137; Meyer v. Nebraska, 262 U. S. 390, 399. Constitutional protection having been invoked, it is the duty of the court to determine whether the challenged provision has reasonable relation to the protection of purchasers of bread against fraud by short weights and really tends to accomplish the purpose for which it was enacted. Meyer v. Nebraska, supra; Welch v. Swasey, 214 U. S. 91, 105; Dobbins v. Los Angeles, 195 U. S. 223, 236; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 556; Lawton v. Steele, supra. The loaf is the usual form in which bread is sold. The act does not make it unlawful to sell individual loaves weighing more or less than the standard weights respectively. Loaves of any weight may be sold" }, { "docid": "23079293", "title": "", "text": "bargaining struggle, such that a legislature might reasonably have contemplated serious consequences to the community as a whole and have sought to avoid them by regulation of the terms of the contract. Munn v. Illinois, 94 U. S. 113; Brass v. Stoeser, 153 U. S. 391; German Alliance Insurance Co. v. Lewis, 233 U. S. 389, 409; Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252; Block v. Hirsh, 256 U. S. 135; Marcus Brown Co. v. Feldman, 256 U. S. 170; Levy Leasing Co. v. Siegel, 258 U. S. 242; Nebbia v. New York, 291 U. S. 502; see also, Frisbie v. United States, 157 U. S. 160; Knoxville Iron Co. v. Harbison, 183 U. S. 13; McLean v. Arkansas, 211 U. S. 539; Mutual Loan Co. v. Martell, 222 U. S. 225. No one doubts that the presence in the community of a large number of those compelled by economic necessity to accept a wage less than is needful for subsistence is a matter of grave public concern, the more so when, as has been demonstrated here, it tends to produce ill health, immorality and deterioration of the race. The fact that .at one time or another Congress and the legislatures of seventeen states, and the legislative bodies of twenty-one foreign countries, including Great Britain and its four commonwealths, have found that wage regulation, is an appropriate corrective for serious social and economic maladjustments growing out of inequality in bargaining power, precludes, for me, any assumption that it is a remedy beyond the bounds of reason. It is difficult to imagine any grounds, other than our own personal economic predilections, for saying that the contract of employment is any the less an appropriate subject of legislation than are scores of others, in dealing with which this Court has held that legislatures may curtail individual freedom in the public interest. If it is a subject upon which there is power to legislate at all, the Fourteenth Amendment makes no distinction between the methods by which legislatures may deal with it, any more than it proscribes the regulation" }, { "docid": "23079285", "title": "", "text": "time (Booth v. Illinois, 184 U. S. 425); the forbidding of advance payments to seamen-(Patterson v. Bark Eudora, 190 U. S. 169); the prohibition of contracts to pay miners employed at quantity rates upon the basis of screéned coal instead of the weight of the coal as originally produced in the mine (McLean v. Arkansas, 211 U. S. 539); the regulation of the size and weight of loaves of bread (Schmidinger v. Chicago, 226 U. S. 578; Petersen Baking Co. v. Bryan, 290 U. S. 570); the regulation of insurance rates (German Alliance Insurance Co. v. Lewis, 233 U. S. 389; O’Gorman & Young v. Hartford Insurance Co., supra); the regulation of the size and character of packages in which goods are sold (Armour & Co. v. North Dakota, 240 U. S. 510); the limitation of hours of employment in manufacturing establishments with a specified allowance of overtime payment (Bunting v. Oregon, 243 U. S. 426); the regulation of sales of stocks and bonds to prevent fraud (Hall v. Geiger-Jones Co., 242 U. S. 539); the regulation of the price of milk (Nebbia v. New York, supra). The test of validity' is not artificial. It is whether the limitation upon the freedom of contract is arbitrary and capricious or one reasonably required in order appropriately to serve the public interest in the light of the particular conditions to which the power is addressed. When there are conditions which specially touch the health and well-being of women, the State may exert its power in a reasonable manner for their protection, whether or not a similar regulation is, or could be, applied to men. The distinctive nature and function of women—their particular relation to the social welfare— has put them in a separate class. This separation and corresponding distinctions in legislation is one of the outstanding traditions of legal history. The Fourteenth Amendment found the States with that protective power and did not take it away or remove the reasons for its exercise. Changes have been effected within the domain of state policy and upon an appraisal of state interests. We have" }, { "docid": "23079286", "title": "", "text": "the regulation of the price of milk (Nebbia v. New York, supra). The test of validity' is not artificial. It is whether the limitation upon the freedom of contract is arbitrary and capricious or one reasonably required in order appropriately to serve the public interest in the light of the particular conditions to which the power is addressed. When there are conditions which specially touch the health and well-being of women, the State may exert its power in a reasonable manner for their protection, whether or not a similar regulation is, or could be, applied to men. The distinctive nature and function of women—their particular relation to the social welfare— has put them in a separate class. This separation and corresponding distinctions in legislation is one of the outstanding traditions of legal history. The Fourteenth Amendment found the States with that protective power and did not take it away or remove the reasons for its exercise. Changes have been effected within the domain of state policy and upon an appraisal of state interests. We have not yet arrived at a time when' we are at liberty to override the judgment of the State and decide that women are not the special subject of exploitation because they are women and as such are not in a relatively defenceless position. More than forty years after the adoption of the Fourteenth Amendment; we said that it did not interfere with state power by creating “a fictitious equality.” Quong Wing v. Kirkendall, 223 U. S. 59, 63. We called attention to the ample precedents in regulatory provisions for a classification on the basis of sex. We said—“It has been recognized with regard to hours of work. ... It is recognized in the respective rights of husband and wife in land during life, in the inheritance after the death of the spouse. Often it is expressed in the time fixed for coming of age. . . . The particular points at which that difference shall be emphasized by legislation are largely in the power of the State.” Id. Not long before the decision in the" }, { "docid": "22799861", "title": "", "text": "will mention a few that seem to me to have interfered with liberty of contract quite as seriously and directly as the one before us. Usury laws prohibit contracts by which a man receives more than so much interest for the money that he lends. Statutes of frauds restrict many contracts to certain forms. Some Sunday laws prohibit practically all contracts during one-seventh of our whole life. Insurance rates may be regulated. German Alliance Insurance Co. v. Lewis, 233 U. S. 389. (I concurred in that decision without regard to the public interest with which insurance was said to be clothed. It seemed to me that the principle was general.) Contracts may be forced upon the. companies. National Union Fire Insurance Co. v. Wanberg, 260 U. S. 71. Employers of miners may be required to pay for coal by weight before screening. McLean v. Arkansas, 211 U. S. 539. Employers generally may be required to redeem in cash store orders accepted by their employees in payment. Knoxville Iron Co. v. Harbison, 183 U. S. 13. Payment of sailors in advance may be forbidden. Patterson v. Bark Eudora, 190 U. S. 169. The size of a loaf of bread may be established. Schmidinger v. Chicago, 226 U. S. 578. The responsibility of employers to their employees may be profoundly modified. New York Central R. R. Co. v. White, 243 U. S. 188. Arizona Employers’ Liability Cases, 250 U. S. 400. Finally women’s hours of labor may be fixed; Muller v. Oregon, 208 U. S. 412; Riley v. Massachusetts, 232 U. S. 671, 679; Hawley v. Walker, 232 U. S. 718; Miller v. Wilson, 236 U. S. 373; Bosley v. McLaughlin, 236 U. S. 385; and the principle was extended to men with the allowance of a limited overtime to be paid for “ at the rate of time and one-half of the regular wage,” in Bunting v. Oregon, 243 U. S. 426. I confess that I do not understand the principle on which the power to fix a minimum for the wages of women can be denied by those who admit" }, { "docid": "22641567", "title": "", "text": "to become substantially the same, the right to make any contract in respect of wages will have been completely abrogated. A more complete discussion may be found in the Adkins and Tipaldo cases cited supra. Allgeyer v. Louisiana, 165 U. S. 578; Lochner v. New York, 198 U. S. 45; Adair v. United States, 208 U. S. 161. Munn v. Illinois, 94 U. S. 113; Railroad Commission Cases, 116 U. S. 307; Willcox v. Consolidated Gas Co., 212 U. S. 19; Atkin v. Kansas, 191 U. S. 207; Mugler v. Kansas, 123 U. S. 623; Crowley v. Christensen, 137 U. S. 86; Gundling v. Chicago, 177 U. S. 183; Booth v. Illinois, 184 U. S. 425; Schmidinger v. Chicago, 226 U. S. 578; Armour & Co. v. North Dakota, 240 U. S. 510; National Fire Insurance Co. v. Wanberg, 260 U. S. 71; Radice v. New York, 264 U. S. 292; Yeiser v. Dysart, 267 U. S. 540; Liberty Warehouse Co. v. Burley Tobacco Growers’ Assn., 276 U. S. 71, 97; Highland v. Russell Car Co., 279 U. S. 253, 261; O’Gorman & Young v. Hartford Insurance Co., 282 U. S. 249, 251; Hardware Dealers Insurance Co. v. Glidden Co., 284 U. S. 151, 157; Packer Corp. v. Utah, 285 U. S. 95, 111; Stephenson v. Binford, 287 U. S. 251, 274; Hartford Accident Co. v. Nelson Mfg. Co., 291 U. S. 352, 360; Petersen Baking Co. v. Bryan, 290 U. S. 570; Nebbia v. New York, 291 U. S. 502, 527-529." }, { "docid": "22641535", "title": "", "text": "hundreds of so-called police laws that have been upheld.” 261 U. S., p. 570. And Chief Justice Taft forcibly pointed out the consideration which is basic in a statute of this character: “Legislatures which adopt a requirement of maximum hours or minimum wages may be presumed to believe that when sweating employers are prevented from paying unduly low wages by positive law they will continue their business, abating that part of their profits, which were wrung from the necessities of their employees, and will concede the better terms required by the law; and that while in individual cases hardship may result, the restriction will enure to the benefit of the general class of employees in whose interest the law is passed and so to that of the community at large.” Id., p. 563. We think that the views thus expressed are sound and that the decision in the Adkins case was a departure from the true application of the principles governing the regulation by the State of the relation of employer and employed. Those principles have been reenforced by our subsequent decisions. Thus in Radice v. New York, 264 U. S. 292, we sustained the New York statute which restricted the employment of women in restaurants at night. In O’Gorman & Young v. Hartford Fire Insurance Co., 282 U. S. 251, which upheld an act regulating the commissions of insurance agents, we pointed to the presumption of the constitutionality of a statute dealing with a subject within the scope of the police power and to the absence of any factual foundation of record for deciding that the limits of power had been transcended. In Nebbia v. New York, 291 U. S. 502, dealing with the New York statute providing for minimum prices for milk, the general subject of the regulation of the use of private property and of the making of private contracts received an exhaustive examination and we again declared that if such laws “have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied” ; that “with" }, { "docid": "7242088", "title": "", "text": "U. S. 391; German Alliance Insurance Co. v. Lewis, 233 U. S. 389; O’Gorman & Young v. Hartford Insurance Co., 282 U. S. 251; Nebbia v. New York, 291 U. S. 502. Confiscation is not shown. The presumption of reasonableness has not been overthrown. O’Gorman & Young v. Hartford Insurance Co., supra. It is apparent that the return to the warehousemen will largely be governed by the volume and value of the tobacco crop. The evidence relates chiefly to the years of the great depression and affords no appropriate criterion for a more normal period. Moreover, we find no sufficient ground for disturbing the finding of the District Court that the evidence did not satisfactorily establish what any warehouseman, individual or corporate, lost by reason of the prescribed scale of charge in contradistinction to its effect upon the warehousemen as a group. See Aetna Insurance Co. v. Hyde, 275 U. S. 440, 447, 448. The burden resting upon appellants to make a convincing showing that the statutory rates would operate so severely as to deprive them, respectively, of their property without due process of law, was not sustained. Aetna Insurance Co. v. Hyde, supra; Los Angeles Gas & Electric Corp. v. Railroad Commission, 289 U. S. 287, 304, 305; Lindheimer v. Illinois Bell Telephone Co., 292 U. S. 151, 164; Dayton Power & Light Co. v. Public Utilities Comm’n, 292 U. S. 290, 298. Appellants contend that the legislative action was taken without investigation and hence must be considered to be arbitrary and beyond the legislative power. There is no principle of constitutional law which nullifies action taken by a legislature, otherwise competent, in the absence of a special investigation. The result of particular legislative inquiries through commissions or otherwise may be most helpful in portraying the exigencies to which the legislative action has been addressed and in fortifying conclusions as to reasonableness. Nebbia v. New York, supra, pp. 516 et seq. But the legislature, acting within its sphere, is presumed to know the needs of the people of the State. Whether or not special inquiries should be made is" }, { "docid": "22641527", "title": "", "text": "Co. v. McGuire, 219 U. S. 549, 567. This power under the Constitution to restrict freedom of contract has had many illustrations. That it may be exercised in the public interest with respect to contracts between employer and employee is undeniable. Thus statutes have been sustained limiting employment in underground mines and smelters to eight hours a day (Holden v. Hardy, 169 U. S. 366); in requiring redemption in cash of store orders or other evidences of indebtedness issued in the payment of wages (Knoxville Iron Co. v. Harbison, 183 U. S. 13); in forbidding the payment of seamen’s wages in advance (Patterson v. Bark Eudora, 190 U. S. 169); in making it unlawful to contract to pay miners employed at quantity rates upon the basis of screened coal instead of the weight of the coal as originally produced in the mine (McLean v. Arkansas, 211 U. S. 639); in prohibiting contracts limiting liability for injuries to employees (Chicago, B. & Q. R. Co. v. McGuire, supra); in limiting hours of work of employees in manufacturing establishments (Bunting v. Oregon, 243 U. S. 426); and in maintaining workmen’s compensation laws (New York Central R. Co. v. White, 243 U. S. 188; Mountain Timber Co. v. Washington, 243 U. S. 219). In dealing with the relation of employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression. Chicago, B. & Q. R. Co. v. McGuire, supra, p. 570. The point that has been strongly stressed that adult employees should be deemed competent to make their own contracts was decisively met nearly forty years ago in Holden v. Hardy, supra, where we pointed out the inequality in the footing of the parties. We said (Id., 397): \"The legislature has also recognized the fact, which the experience of legislators in many States has corroborated, that the proprietors of these establishments and their operatives do not stand upon" }, { "docid": "7242087", "title": "", "text": "regulation and control by the public has been recognized and enforced in this State. — In fact, there is no subject in which the protection of the producers against extortion and combinations to reduce prices is more important.” In South Carolina maximum charges for selling leaf tobacco upon the floor of tobacco warehouses are fixed. Code, South Carolina, 1932, § 7197, and earlier statutes there cited. The statute of Georgia, here under attack, copies almost exactly the South Carolina statute. See, also, as to the authority of the State, Nash v. Page, 80 Ky. 539; Pannell v. Louisville Tobacco Warehouse Co., 113 Ky. 630. So far as the present controversy turns upon the power of the State to give this sort of protection to this industry, provided its regulation is not arbitrary or confiscatory and in the absence of conflict with the federal power over commerce, our rulings are decisive in support of the state action. Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 517; Brass v. Stoeser, 153 U. S. 391; German Alliance Insurance Co. v. Lewis, 233 U. S. 389; O’Gorman & Young v. Hartford Insurance Co., 282 U. S. 251; Nebbia v. New York, 291 U. S. 502. Confiscation is not shown. The presumption of reasonableness has not been overthrown. O’Gorman & Young v. Hartford Insurance Co., supra. It is apparent that the return to the warehousemen will largely be governed by the volume and value of the tobacco crop. The evidence relates chiefly to the years of the great depression and affords no appropriate criterion for a more normal period. Moreover, we find no sufficient ground for disturbing the finding of the District Court that the evidence did not satisfactorily establish what any warehouseman, individual or corporate, lost by reason of the prescribed scale of charge in contradistinction to its effect upon the warehousemen as a group. See Aetna Insurance Co. v. Hyde, 275 U. S. 440, 447, 448. The burden resting upon appellants to make a convincing showing that the statutory rates would operate so severely as to deprive" } ]

[ { "docid": "20050065", "title": "", "text": "allege failure or refusal of the labor organization or its governing board or officers to sue or secure relief upon request. However, like the demand requirement of Rule 23.1 of the Federal Rules of Civil Procedure, such a request is not always necessary. See 3B J. Moore, Federal Practice If 23.1.19, at 23.1-253 to 23.1-255 (2d ed. 1969). Here the defendants expressly predicated removal upon Section 501(b) and have never objected to any failure of plaintiff to request relief. In any event, when the proceedings in the district court began to unfold, there was no doubt but that such a request would have been an idle ceremony. . The propriety of the permanent receivership order under the facts of this case is discussed infra. . The district court found that the Pension Plan Committee retained and acted upon the advice of its investment counselor knowing him to be compensated by those borrowing money from the pension fund and not by the fund. The court further found the Committee to have made an unsecured loan to a corporation of which the major stockholders were union officials, such loan now being delinquent in its entire principal amount. . See Highway Truck Drivers v. Cohen, 182 F.Supp. 608, 617 (E.D.Pa.), affirmed, 284 F.2d 162 (3d Cir. 1960), certiorari denied, 365 U.S. 833, 81 S.Ct. 747, 5 L.Ed.2d 744. . Cox, supra, note 20 at 828. . See id; 105 Cong.Rec. 17900 (remarks of Senator Kennedy); Dugan, supra, note 17 at 289-290, 294; see generally Scott, The Fiduciary Principle, 37 Calif.L.Rev. 539 (1949). . It is immaterial that the International Union itself was not planed under a permanent receivership on June 22, for plaintiff had already produced evidence that the pension fund was actuarially unsound and had its assets severely depleted through mismanagement of the Pension Plan Committee. Accordingly, disparate treatment of the pension fund was justified, so that it was entirely proper for the district judge to set an August 3, 1971, hearing on why the Union’s temporary receivership should not be made permanent. . Although defendants’ brief contains one sentence critical of" } ]

[ { "docid": "19220006", "title": "", "text": "Section 501(b) of the Labor Management Reporting and Disclosure Act states in pertinent part: When any ... representative of any labor organization is alleged to have violated [his fiduciary duties] and the labor organization or its governing board of officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization, such member may sue such ... representative in any district court of the United States or in any State court of competent jurisdiction to recover damages or secure an accounting or other appropriate relief for the benefit of the labor organization. No such proceeding shall be brought except upon leave of the court obtained upon verified application and for good cause shown ... 29 U.S.C. § 501(b) (emphasis added). Section 501(b) is similar in form to statutes governing shareholder derivative actions and creates a remedy for individual union members only when the union itself fails to act. Phillips v. Osborne 403 F.2d 826, 831 (9th Cir.1968). The language of § 501(b) as well as the decisional law on the statute makes clear that there are three conditions precedent to filing a § 501(b) action. First, a court must grant leave to allow the filing of a complaint after “good cause” has been shown. This unique provision is designed to safeguard union officials from “harassing and vexatious litigation brought without merit or good faith.” Horner v. Ferron, 362 F.2d 224, 228 (9th Cir.1966). Leave was granted to file the Second Federal Suit by another Judge in the Central District. This Court believes that the order permitting the suit to be filed was granted because attorney Vogel, who is a very persuasive oral advocate, represented to the Court that the union had refused to sue Austin and that the State Suit involved a completely different set of claims. The number of lawsuits arising out of this dispute tends to obfuscate the substantive allegations against Austin for which damages have been sought. These, upon scrutiny, boil down to one kind" }, { "docid": "10326828", "title": "", "text": "This portion of the section is deemed to have created a condition precedent. Thus, in Horner v. Ferron, 362 F.2d 224 (9th Cir. 1966), our court declared that the “good cause” provision was a condition precedent to Section 501 suits, a condition which was designed to protect unions and their officers from harassing, vexatious litigation. 362 F.2d 228. In addition to the “good cause” provision, other clauses of Section 501(b) have been construed as imposing conditions precedent to suit. Under Section 501(b), a plaintiff may bring an action only if “the labor organization or its governing board or officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so * * In Coleman v. Brotherhood of Railway & Steamship Clerks, Etc., 340 F.2d 206 (2d Cir. 1965), the court held that a request for action by the “organization or its governing board or officers” was a mandatory condition precedent to a Section 501 suit. Moreover, the court construed this provision quite strictly by declaring that the condition required that an actual request be made and that a mere allegation that a request would be futile would not satisfy the Section 501(b) requirement. Finally, along with requiring the making of some request, it is a prerequisite to federal jurisdiction that the union must have evidenced a refusal to comply with the request. Penuelas v. Moreno, 198 F.Supp. 441 (S.D. Cal.1961). Here, the District Court correctly concluded that union membership on the part of a plaintiff is another condition precedent to his filing a Section 501 suit in the federal court. Indeed, in our case of Horner v. Ferron, supra, we in effect declared that this was true: “[T]hus if the defendant can establish * * * facts which demonstrate that the plaintiff is not a member of the defendant union, or that the action is outlawed by a statute of limitations, or that the action cannot succeed because of the application of the principles of res judicata or collateral estoppel, or that plaintiff has not" }, { "docid": "19988581", "title": "", "text": "obtained upon verified application and for good cause shown, which application may be made ex parte. The trial judge may allot a reasonable part of the recovery in any action under this subsection to pay the fees of counsel prosecuting the suit at the instance of the member of the labor organization and to compensate such member for any expenses necessarily paid or incurred by him in connection with the litigation. 29 U.S.C. § 501(b). The purpose of the § 501(b) prerequisites is to shield union officers from the harassment of unwarranted actions. Dinko v. Wall, 531 F.2d 68, 73 (2d Cir. 1976). The first basis on which the defendant contends that the jurisdiction of this Court is lacking is that the plaintiff neither applied for nor received the “express permission of the Court” to proceed with his action. However, a mere lack of formality in obtaining the leave of the Court to proceed is not grounds for dismissing the action. Executive Board, Local 28 v. IBEW, 184 F.Supp. 649, 653 (D.Md.1960). Permission may be granted after the complaint is filed, and if so, it is done nunc pro tunc without necessitating a dismissal and refiling of the complaint. Sablosky v. Budzanoki, 457 F.2d 1245, 1250 (3rd Cir. 1972); Executive Board, Local 28 v. IBEW, 184 F.Supp. at 653. A proper request to proceed may appear in the complaint itself. See Sablosky v. Budzanoki, 457 F.2d at 1249. A verification of the complaint then satisfies the requirement of a “verified application”. Horner v. Ferron, 362 F.2d 224 (9th Cir. 1966). An application of these principles to the present case demonstrates that the plaintiff's request to proceed, appearing in § 41 of the verified complaint, satisfies the procedural prerequisites for jurisdiction under § 501(b). The defendant also argues that the Court lacks jurisdiction because the plaintiff cannot show that he has “good cause” to bring this suit. However, the facts now before this Court reveal the requisite “good cause.” Section 501(a) establishes the standard by which this suit is to be judged. (a) The officers, agents, shop stewards, and other representatives" }, { "docid": "12536729", "title": "", "text": "not available to defend officers charged with wrongdoing which, if the charges were true, would be seriously detrimental to the union and its membership. . . The treasury of a union is not at the disposal of its officers to bear the cost of their defense against charges of fraudulently depriving the members of their rights as members.” This is such a case. Defendants were charged with willfully disobeying the Guild Constitution by denying union members their guaranteed right to vote in a properly petitioned-for-referendum. The defendants admittedly utilized union counsel and union funds for their defense. The purpose of Title V of the Labor-Management Reporting and Disclosure Act is to insure that members who think that union officers have violated their fiduciary duties shall be able to hold those individual officers responsible in a court of law. The real beneficiaries of a successful § 501 action are the union and its entire membership. “How can the salutary effect of the Act be attained by this court if payment of defendants’ legal costs are paid [by the union] in any case where officers are charged with acts inimical to the union?” Highway Truck Drivers and Helpers Local 107 v. Cohen, E.D.Pa., 1963, 215 F.Supp. 938, 941, affirmed, 3 Cir., 1964, 334 F.2d 378, cert. denied, 379 U.S. 921, 85 S.Ct. 277, 13 L.Ed.2d 335. There are two answers to defendants’ argument that they should be permitted to use union counsel and funds to defend themselves in a § 501 action as a means of protecting officers from vexatious and harassing litigation. First, the statute itself provides a measure of insurance against groundless claims by requiring that a § 501 suit proceed only upon authorization of a judge who has found “good cause” for the plaintiff to commence the action. See Horner v. Ferron, 9 Cir., 1966, 362 F.2d 224, cert. denied, 385 U.S. 958, 87 S.Ct. 397, 17 L.Ed.2d 305, and Addison v. Grand Lodge of the International Association of Machinists, 9 Cir., 1962, 318 F.2d 504. Second, the policy of permitting a union to reimburse its officers who have" }, { "docid": "12536730", "title": "", "text": "[by the union] in any case where officers are charged with acts inimical to the union?” Highway Truck Drivers and Helpers Local 107 v. Cohen, E.D.Pa., 1963, 215 F.Supp. 938, 941, affirmed, 3 Cir., 1964, 334 F.2d 378, cert. denied, 379 U.S. 921, 85 S.Ct. 277, 13 L.Ed.2d 335. There are two answers to defendants’ argument that they should be permitted to use union counsel and funds to defend themselves in a § 501 action as a means of protecting officers from vexatious and harassing litigation. First, the statute itself provides a measure of insurance against groundless claims by requiring that a § 501 suit proceed only upon authorization of a judge who has found “good cause” for the plaintiff to commence the action. See Horner v. Ferron, 9 Cir., 1966, 362 F.2d 224, cert. denied, 385 U.S. 958, 87 S.Ct. 397, 17 L.Ed.2d 305, and Addison v. Grand Lodge of the International Association of Machinists, 9 Cir., 1962, 318 F.2d 504. Second, the policy of permitting a union to reimburse its officers who have successfully defended themselves against charges of violating § 501 provides adequate protection of union officers from baseless litigation. Holdeman v. Sheldon, 2 Cir., 1962, 311 F.2d 2, 3. 4. Award of litigation expenses to plaintiff. The trial court denied plaintiff’s request for award of litigation expenses, including attorney’s fees, although the statute clearly authorizes the court to grant such fees to successful plaintiffs in § 501 actions. Two reasons appear for the trial judge’s refusal to award litigation expenses to the plaintiff here. The first is that judgment was rendered in favor of the defendants. However, we reverse on the issue of the defendants’ violation of § 501. Thus this justification for refusing to award litigation expenses to plaintiff is no longer available. The trial court also interpreted the authorizing provision of § 501(b) as limiting an award of attorney’s fees to eases in which a money recovery to plaintiff results. We do not accept that construction of § 501(b). Any plaintiff who is successful in establishing a breach of fiduciary duty by defendant-officers in" }, { "docid": "19988584", "title": "", "text": "the complaint state a cause of action. “Good cause” is an elastic concept, and is often used as a shorthand summary of the underlying policy reasons why a litigant should be able to attain a specified result. Here, two policies compete: supervision of union officials in the exercise of their fiduciary obligations and protection, through a preliminary screening mechanism, of the internal operation of unions against unjustified interference or harassment. We believe that both these policies are served if good cause in section 501(b) is construed to mean that plaintiff must show a reasonable likelihood of success and, with regard to any material facts he alleges, must have a reasonable ground for belief in their existence. Dinko v. Wall, 531 F.2d at 75; see also Horner v. Ferron, 362 F.2d at 229 (9th Cir. 1966). Allegations in substantial detail or the submission of sworn affidavits attesting to the truth of the charges contained in the complaint assist a court in finding good cause. Note, “Counsel Fees for Union Officers Under the Fiduciary Provision of Landrum-Griffin”, 73 Yale L.J. 443, 453 (1964). Here the Court has already determined, in granting the TRO, that there is “reasonable likelihood of success” on count one. The facts detailed .in counts two through four of the complaint and sworn to by the plaintiff demonstrate that these claims are serious and also merit a thorough treatment in this Court. The defendant suggests that the plaintiff cannot show good cause because he has failed to exhaust his intra-union remedies. It is clear that such exhaustion is not expressly required by § 501(b). Purcell v. Keane, 406 F.2d 1195, 1199 (3rd Cir. 1969). While some courts have considered a failure to exhaust in assessing “good cause”, see, e. g., Sablosky v. Budzanoki, 457 F.2d at 1252, others have ignored it, see, e. g., Horner v. Ferron, 362 F.2d at 231. Assuming arguendo that the plaintiff’s attempts for internal redress are relevant, nothing in the facts of this case weakens the conclusion that there exists good cause to proceed with this suit. Beginning in November, 1977, the plaintiff sought" }, { "docid": "23136063", "title": "", "text": "No such proceeding shall be brought except upon leave of the court obtained upon verified application and for good cause shown, which application may be made ex parte. The trial judge may allot a reasonable part of the recovery in any action under this subsection to pay the fees of counsel prosecuting the suit at the instance of the member of the labor organization and to compensate such member for any expenses necessarily paid or incurred by him in connection with the litigation. . Section 501 does not provide for suit against a labor organization or an employer. Pignotti v. Local # 3, Sheet Workers’ International Association, 477 F.2d 825, 832 (8th Cir.), cert. denied, 414 U.S. 1067, 94 S.Ct. 576, 38 L.Ed.2d 472 (1973); Bright v. Taylor, 554 F.2d 854 (8th Cir. 1977). . Recently in Flaherty v. Warehouseman, Garage and Service Station Employees’ Local Union No. 33, 574 F.2d 484, 487 (9th Cir. 1978), we reiterated that because section 501(b) extends the jurisdiction of the federal courts, it must be strictly construed. Unlike the present case, Flaherty dealt with a situation where the plaintiffs had failed to allege that they had made a required demand on their union to secure relief. We held that failure to make the allegation required denial of leave to file the complaint. See Homer v. Ferron, 362 F.2d 224 (9th Cir. 1966) (prerequisites for suit under § 501(b) safeguard union officials from harassment and prevent undue judicial interference). . Gurton was recently affirmed in Head v. Brotherhood of Railway, Airline and Steamship Clerks, etc., 512 F.2d 398 (2d Cir. 1975). See Cefalo v. Moffett, 163 U.S.App.D.C. 46, 449 F.2d 1193 (1971). . Article XV, Section 5 reads: Sec. 5. When there is more than one branch of workers under I.B.E.W. jurisdiction represented in a L.U. [local union], the members of each branch shall define their own scale of wages, hours and working conditions. (However, this section shall not apply when different branches, divisions or classifications come under one blanket agreement. When these come under one agreement they shall vote as a group.) ." }, { "docid": "15080841", "title": "", "text": "them into partisan political campaign activities and ideological causes and organizations in violation of the rights of such members and the plaintiffs as aforesaid. E. Issue an order requiring UAW, UAW Local 25 and the officers thereof to pay reasonable attorney’s fees and other costs and expenses of this action, including a reasonable fee of any accountants or other persons whose services may be necessary to obtain full and complete disclosure of the financial records and data of UAW Local 25, and other funds administered by defendants as herein alleged. The District Court dismissed this count for failure to state a cause of action. We feel that it acted properly. A. We do not view § 501 as an independent discovery tool to investigate official use of union funds. Section 201 provides that tool. If § 501 were read as broadly as appellants would have it, § 201 would become superfluous. Section 501 is but one provision in an entire act. It is not intended to encompass all of the duties and rights of the entire act. Section 201 is the provision intended by Congress to compel the union hierarchy to reveal to the membership the nature and detail of official union activities. As construed by this Court, that section will provide the membership with the information they need. Section 501, by contrast, describes not a general duty to report but the nature of the obligation an individual assumes with his union office. Thus, insofar as the appellants invoke § 501 as a discovery tool to investigate official uses of their funds, their efforts are misplaced. Section 201 provides their remedy if one exists. B. We believe that the trial court properly followed McNamara v. Johnston, 522 F.2d 1157 (7th Cir. 1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976), and correctly held that the appellees did not breach their fiduciary duty by making the questioned expenditures. In our view, the expenditures were clearly authorized by the union’s constitution and resolutions of the union’s national convention. The 1968 UAW convention gave the International Executive Board (IEB)" }, { "docid": "19220007", "title": "", "text": "826, 831 (9th Cir.1968). The language of § 501(b) as well as the decisional law on the statute makes clear that there are three conditions precedent to filing a § 501(b) action. First, a court must grant leave to allow the filing of a complaint after “good cause” has been shown. This unique provision is designed to safeguard union officials from “harassing and vexatious litigation brought without merit or good faith.” Horner v. Ferron, 362 F.2d 224, 228 (9th Cir.1966). Leave was granted to file the Second Federal Suit by another Judge in the Central District. This Court believes that the order permitting the suit to be filed was granted because attorney Vogel, who is a very persuasive oral advocate, represented to the Court that the union had refused to sue Austin and that the State Suit involved a completely different set of claims. The number of lawsuits arising out of this dispute tends to obfuscate the substantive allegations against Austin for which damages have been sought. These, upon scrutiny, boil down to one kind of claim—misappropriation of funds. This was not readily discernable at the good cause hearing. The second condition precedent to filing a § 501(b) action is that the plaintiff be a union member and has requested that the union act against the alleged financial impropriety. Phillips v. Osborne, supra at 830 (an actual request [must] be made ... a mere allegation that a request would be futile would not satisfy the § 501(b) requirement); accord Flaharty v. Warehouseman, Etc., Loc. U. No. 334, 574 F.2d 484 (9th Cir.1978). The complaint in the Second Federal Suit does not allege any such request by plaintiffs. The third condition precedent is that the union must fail or refuse to act after such a request is made. The special remedy that Congress created under § 501(b) was designed to deal with situations where union officers or employees are abusing their positions of trust and the union membership, after complaining about such abuses to union leadership and achieving no results, has no alternative but to invoke the power of the state" }, { "docid": "12152501", "title": "", "text": "governing board or officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization, such member may sue such officer, agent, shop steward, or representative in any district court of the United States or in any State court of competent jurisdiction to recover damages or secure an accounting or other appropriate relief for the benefit of the labor organization. No such proceeding shall be brought except upon leave of the court obtained upon verified application and for good cause shown, which application may be made ex parte. * * *” The statute provides specifically and it has been so held by case authority that a request upon the union officers to take action is a condition precedent to suit by a union member. Coleman v. Brotherhood of Railway and S. S. Clerks, Freight Handlers, Exp. and Station Emp., 340 F.2d 206, 15 A.L.R.3d 933 (2 Cir.1965); Horner v. Ferron, 362 F.2d 224 (9 Cir.1966), cert. den. 385 U.S. 958, 87 S.Ct. 397, 17 L.Ed.2d 305; Persico v. Daley, 239 F.Supp. 629 (D.C.N.Y.1965); International Brotherhood of Teamsters, etc. v. Hoffa, 242 F.Supp. 246 (D.D.C.1965). Also, the complainant must obtain leave of court upon good cause shown before commencing suit. Addison v. Grand Lodge of International Association of Machinists, 318 F.2d 504 (9 Cir.1963); Coleman, supra; Executive Board, Local Union v. International Brotherhood of Electrical Workers, 184 F.Supp. 649 (D.C.Md.1960). Appellants would now have us en-graft upon the express provisions of 501(b) the exhaustion language contained in 411(a)(4) set forth above. Appellants argue that the requirement of exhaustion in this instance would be consonant with the Legislative intent expressed by Congress. We find the opposite to be true. The Congressional intent is clearly set forth in Section 2, 73 Stat. 519, 29 U.S.C.A. § 401(1959). It reads, in part, as follows : “(b) The Congress further finds, from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption," }, { "docid": "22901263", "title": "", "text": "is no mandatory exhaustion of internal remedies requirement in suits brought under Section 501 of the LMRDA. We also stated that efforts to invoke internal remedies of the union may affect the “good cause” requirement of Section 501(b) under certain circumstances. A review of plaintiff’s efforts in seeking union action before bringing suit does not present a picture of deliberate harassment. Sincere efforts were made by several plaintiffs to obtain compliance by direct impleader. The letter of request addressed to President Budzanowski, although not a request of the officer to sue, did seek internal relief, and in the circumstances then existing, with a District election fast approaching, cannot be deemed insufficient. Compare Aho v. Bintz, su pra, where the plaintiffs’ allegation that they telephoned the International President for relief, which request was denied by return wire, was deemed sufficient. In this case, as in Purcell, supra, strict use of any exhaustion requirement would not be warranted. In view of the union officers’ alleged “interpretation” of the relevant constitutional provisions, a request to sue would have been an exercise in futility. Section 501(b) was designed to prevent the filing of harassing and vexatious suits brought without merit or good faith against union officials. Highway Truck Drivers and Helpers Local 107 v. Cohen, supra, 182 F.Supp. p. 622, footnote 10. We fail to see how entertainment of the complaint herein will achieve the undesirable end which Section 501(b) was designed to prevent. The order of dismissal with respect to the District No. 5 President, Secretary and members of the Executive Council is reversed and the cause remanded for further proceedings consistent with this opinion. . Article XIV of the UMWA International Constitution provides: “Section 1. Local Unions shall be composed of 10 or more workers, skilled or unskilled, working in or around coal mines, coal washeries, coal processing plants, coke ovens, or in other industries designated and approved by the International Executive Board. . . . ” “Section 21. If any mine or colliery is permanently abandoned, or should any Local Union for any cause disband, or should its charter be revoked," }, { "docid": "22003521", "title": "", "text": "S.Ct. 65, 34 L.Ed.2d 96, the court viewed the statutory mandate of requesting the union officers to sue and their refusal to do so as similar to situations where there is a requirement of exhaustion of internal or administrative remedies before resort to the courts is permitted. The Third Circuit had held previously, in Purcell, supra, that exhaustion of internal remedies is not required in suits brought under Section 501 but that efforts to invoke internal remedies may affect the “good cause” requirement of Section 501(b). In Sabolsky, supra, the letter request, although not a request of an officer to sue, did seek internal relief as it charged a violation of the union’s constitution. This request was held to be sufficient to meet the prerequisite set forth in the Act. In the instant case, plaintiffs’ charge letter and the absence of suit by union officers are, under the present circumstances, sufficient to meet this condition precedent for bringing suit. II “Good Cause” Requirement Section 501(b) of the Act requires that “good cause” be shown before a court can authorize a suit under the Act. Purcell, supra. This “good cause” requirement is intended to safeguard union officers against harassment and vexatious litigation brought without merit or lacking good faith. Horner v. Ferron, 362 F.2d 224 (9th Cir. 1966), cert. den. 385 U.S. 958, 87 S.Ct. 397, 17 L.Ed.2d 305. As the court said in Horner, supra at 228, “The allegations of the verified complaint may be sufficient to enable the court to determine where there is ‘good cause’.” A court, in its discretion, may take all the facts and circumstances into consideration in determining whether “good cause” has been shown. Purcell, supra. Defendants argue that plaintiffs’ verified application for permission to file suit does not meet the “good cause” requirement. Defendants refer to plaintiffs’ prior federal court suit (C.A. 75-266) and to the union’s finding that plaintiffs’ charges and appeals were without merit as grounds for finding the absence of “good cause.” Defendants also claim that plaintiffs’ action is clearly vexatious. We hold that plaintiffs have met the “good cause” requirement." }, { "docid": "15271318", "title": "", "text": "or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization, such member may sue such officer, agent * * * in any district court of the United States * * * for the benefit of the labor organization [emphasis added]. Plaintiff claims that a demand for a sum of money is sufficient and that, in any event, a request that defendants sue themselves would be futile. With regal’d to the latter claim, this court has stated: We hold that this provision of the statute is mandatory and that its requirements cannot be met by anything short of an actual request. An allegation of the futility of such a request will not suffice. Coleman v. Brotherhood of Ry. & Steamship Clerks, etc., 340 F.2d 206, 208, 15 A.L.R.3d 933 (2d Cir. 1965); see Horner v. Ferron, 362 F.2d 224, 231 (9th Cir.), cert. denied 385 U.S. 958, 87 S.Ct. 397, 17 L.Ed.2d 305 (1966). A demand for a sum of money is not sufficient. The statutory language requiring a request that the labor organization “sue or recover” has been construed to mean “sue to recover”; Penuelas v. Moreno, 198 F.Supp. 441 (S.D.Calif.1961); Persico v. Daley, 239 F.Supp. 629, 630 (S.D.N.Y.1965), pointing out that both House and Senate reports referred to § 501(b) as being worded “ to recover.” This construction, to which we adhere, is fatal to plaintiff’s claim. Defendants seek counsel fees, by analogy to cases involving corporate officers and directors acquitted of wrongdoing. This claim, however, would seem to be one to be made, if at all, to the local union, through its governing board and members; see Highway Truck Drivers, etc. v. Cohen, 284 F.2d 162, 164 (3d Cir. 1960); Holdeman v. Sheldon, 311 F.2d 2, 3 (2d Cir. 1962); cf. Milone v. English, 113 U.S.App.D.C. 207, 306 F.2d 814, 817 (1962). The judgment dismissing the action is affirmed. . Were we to reach the merits, the result would be the same. The Court’s finding No. 34 that no funds" }, { "docid": "21720177", "title": "", "text": "requested that he take some action on Quinn's behalf. The court cited Pawlak v. Greenawalt, 464 F.Supp. 1265, 1269 (M.D.Pa. 1979); Brink v. DaLesio, 453 F.Supp. 272, 277 (D.Md.1978), aff’d in pertinent part, 667 F.2d 420 (4th Cir. 1981); Aho v. Bintz, 290 F.Supp. 577, 580 (D.Minn.1968). See also McNamara v. Johnston, 522 F.2d 1157, 1162 (7th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976) (failure to make demand on International excused where it would have been futile and when demand made on Local); Sabolsky v. Budzanoski, 457 F.2d 1245, 1252 (3d Cir.), cert. denied, 409 U.S. 853, 93 S.Ct. 65, 34 L.Ed.2d 96 (1972) (letter requesting internal relief sufficient under circumstances). But see Cassidy v. Horan, 405 F.2d 230, 233 (2d Cir. 1968) (strictly enforcing requirement of demand that union bring suit). . The district court held that ”[i]n light of the highly specific, verified complaint, the request for leave to proceed found in ... the complaint, and the evidence of good cause clearly set forth in the other pleadings filed to date,” Quinn had satisfied this requirement of § 501(b). See, e.g., Sabolsky v. Budzanoski, 457 F.2d at 1249; Paulak v. Greenawalt, 464 F.Supp. at 1269. But see Adams v. Rear, 424 F.Supp. 1115 (W.D.Okl. 1976) (request for leave to proceed must be obtained prior to commencement of suit). . In its Judgment and Order of June 16, 1983, supra note 11, the court held that \"the fiduciary obligations protected by § 501 ... include the requirement that union officials refrain from violating a union member’s political rights.’’ In so ruling, the court sided with those circuits taking a broad view of the scope of section 501. See, e.g., Stelling v. IBEW, 587 F.2d 1379, 1386-87 (9th Cir.1978), cert. denied sub nom. Darby v. IBEW, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979) (§ 501 breached by failure to submit bargaining agreement to vote as required by union constitution); Sabolsky v. Budzanoski, 457 F.2d 1245, 1249-50 (3d Cir.), cert. denied, 409 U.S. 853, 93 S.Ct. 65, 34 L.Ed.2d 96 (1972) (§" }, { "docid": "15271317", "title": "", "text": "of Electrical, Radio and Machine Workers AFL-CIO, known as IUE, and during an NLRB representation election in the two plants in which Local 1 had members, in which Local 1 lost to IUE in one production, maintenance and factory clerical unit while winning in one production, maintenance and factory clerical unit and both office clerical and technical units. The court held that plaintiff could not maintain the action because he had not complied with the procedural requirements of § 501(b), and that there could be no recovery for breach of fiduciary responsibility, since the challenged expenditures were for proper union purposes. We agree that the precedural requirements of § 501(b) have not been met and therefore find it unnecessary to reach the other questions raised by appellant. Section 501(b), so far as pertinent here, provides: When any officer, agent * * * of any labor organization is alleged to have violated the duties declared in subsection (a) of this section and the labor organization or its governing board or officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization, such member may sue such officer, agent * * * in any district court of the United States * * * for the benefit of the labor organization [emphasis added]. Plaintiff claims that a demand for a sum of money is sufficient and that, in any event, a request that defendants sue themselves would be futile. With regal’d to the latter claim, this court has stated: We hold that this provision of the statute is mandatory and that its requirements cannot be met by anything short of an actual request. An allegation of the futility of such a request will not suffice. Coleman v. Brotherhood of Ry. & Steamship Clerks, etc., 340 F.2d 206, 208, 15 A.L.R.3d 933 (2d Cir. 1965); see Horner v. Ferron, 362 F.2d 224, 231 (9th Cir.), cert. denied 385 U.S. 958, 87 S.Ct. 397, 17 L.Ed.2d 305 (1966). A demand for a" }, { "docid": "10326827", "title": "", "text": "2323 (1959). It has been recognized that the broad language of Section 501(a), imposing fiduciary duties upon union officers, potentially invites undue government interference. Hence, when dealing with this section, the courts have been especially careful to confine their role to areas which are clearly within the intended reach of the Act. For example, in Gurton v. Arons, 339 F.2d 371 (2d Cir. 1964), the court refused to extend federal jurisdiction under Section 501 to breaches of fiduciary duties involving activities unrelated to the money or property of the union. It was declared that fiduciary responsibility under the Act “is not a catch-all provision under which union officials can be sued on any ground of misconduct with which the plaintiffs choose to charge them.” 339 F.2d at 375. Specific clauses of Section 501 (b) have been held to reflect the congressional purpose to limit federal jurisdiction. Section 501(b) provides in part that “[N]o such proceeding shall be brought except upon leave of the court obtained upon verified application and for good cause shown * * This portion of the section is deemed to have created a condition precedent. Thus, in Horner v. Ferron, 362 F.2d 224 (9th Cir. 1966), our court declared that the “good cause” provision was a condition precedent to Section 501 suits, a condition which was designed to protect unions and their officers from harassing, vexatious litigation. 362 F.2d 228. In addition to the “good cause” provision, other clauses of Section 501(b) have been construed as imposing conditions precedent to suit. Under Section 501(b), a plaintiff may bring an action only if “the labor organization or its governing board or officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so * * In Coleman v. Brotherhood of Railway & Steamship Clerks, Etc., 340 F.2d 206 (2d Cir. 1965), the court held that a request for action by the “organization or its governing board or officers” was a mandatory condition precedent to a Section 501 suit. Moreover, the court construed this" }, { "docid": "22901254", "title": "", "text": "Title 29 require strict compliance, and plaintiff’s failure to observe these requirements mandated dismissal. No formal hearing was held in the district court on defendant’s motion to dismiss and plaintiff’s motion for preliminary injunction. The motions were decided on briefs. It appears from the record that the failure of plaintiffs to apply for leave of court to file this suit was raised for the first time in the district court’s opinion. The court did not make a specific finding that good cause had not been shown. It noted in passing that one factor in the showing of good cause requirement “can be the extent to which plaintiffs have utilized or exhausted their internal union remedies.” The complaint in this case was verified by over 100 plaintiffs. Section 501(b) specifically allows an “ex parte” grant of leave to proceed. The appellants contend that by filing the complaint they, in effect, made an ex parte application to the court. It has been held that a lack of formality in observing the procedures of Section 501(b) will not bar a court from granting leave, where appropriate. Executive Board, Local Union No. 28 v. I.B.E.W., 184 F.Supp. 649 (D.Md.1960). As the court said in Horner v. Ferron, 362 F.2d 224 (9th Cir. 1966), “[t]he allegations of the verified complaint maybe sufficient to enable the court to determine whether there is ‘good cause.’ ” Accordingly, the case will be remanded to the district court with directions to grant leave, nunc pro tune, to file the complaint. (3) The district court found that the complaint does not contain allegations of failure to hold money or property for the benefit of the organization nor of any expenditure not authorized by the Constitution, by-laws or resolutions, and that section 501(b) remedies are available only as a cause of action dealing with the fiduciary responsibility with respect to the money or property of the union. We read the complaint as setting forth allegations regarding the holding and expenditure of union funds. Moreover we disagree with the court’s reading of the scope of Section 501. Appellees point to the remarks" }, { "docid": "21720176", "title": "", "text": "labor organization or its governing board or officers refuse to fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization, such member may sue such officer, agent, shop steward, or representative in any district court of the United States or in any State court of competent jurisdiction to recover damages or secure an accounting or other appropriate relief for the benefit of the labor organization. No such proceeding shall be brought except upon leave of the court obtained upon verified application and for good cause shown, which application may be made ex parte____ 29 U.S.C. § 501(b) (emphasis added). . The court held that Quinn was excused from the requirement that he request that the union sue on his behalf because, the court found (1) his suit was brought in good faith; (2) a demand on the union would have been futile; and (3) he had presented his complaint to the union president and requested that he take some action on Quinn's behalf. The court cited Pawlak v. Greenawalt, 464 F.Supp. 1265, 1269 (M.D.Pa. 1979); Brink v. DaLesio, 453 F.Supp. 272, 277 (D.Md.1978), aff’d in pertinent part, 667 F.2d 420 (4th Cir. 1981); Aho v. Bintz, 290 F.Supp. 577, 580 (D.Minn.1968). See also McNamara v. Johnston, 522 F.2d 1157, 1162 (7th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976) (failure to make demand on International excused where it would have been futile and when demand made on Local); Sabolsky v. Budzanoski, 457 F.2d 1245, 1252 (3d Cir.), cert. denied, 409 U.S. 853, 93 S.Ct. 65, 34 L.Ed.2d 96 (1972) (letter requesting internal relief sufficient under circumstances). But see Cassidy v. Horan, 405 F.2d 230, 233 (2d Cir. 1968) (strictly enforcing requirement of demand that union bring suit). . The district court held that ”[i]n light of the highly specific, verified complaint, the request for leave to proceed found in ... the complaint, and the evidence of good cause clearly set forth in the other" }, { "docid": "23559813", "title": "", "text": "that they were not accorded identical rights that other members received; therefore, the plaintiffs failed to establish a violation of § 101(a)(1). The plaintiffs also failed to state a claim under § 501 of the LMRDA, 29 U.S.C. § 501. The plaintiffs’ third amended complaint alleged that Union officials acted in collusion with employers in self-enrichment schemes adverse to the interests of the union members. Section 501 requires union officers. “to hold [the union’s] money and property solely for the benefit of the [union],” and was adopted primarily to address the problem of corruption among union officials. See McNamara v. Johnston, 522 F.2d 1157, 1163 (7th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976). Where a union officer personally benefits from union funds, a court in a section 501 suit may determine whether expenditure of the funds, notwithstanding its authorization by the union’s constitution or by-laws, is so manifestly unreasonable as to evidence a breach of fiduciary duty. Council 49, American Federation of State, etc. v. Reach, 843 F.2d 1343, 1347 (11th Cir.1988). Although the plaintiffs alleged that union officials personally benefitted by colluding to deprive the plaintiffs of their jobs, the plaintiffs could not sue for a violation of § 501(a) because they failed to meet the requirements of § 501(b). The plaintiffs did not allege that an unsuccessful demand was made upon the union or its officers to seek relief against the union officials at issue or that such a demand would have been futile. See Adams-Lundy v. Association of Professional Flight Attendants, 844 F.2d 245, 248 (5th Cir.1988); McNamara, 522 F.2d at 1162-63. The district court also noted that the plaintiffs were not entitled to amend or recast their complaint in an attempt to reassert allegations contained in previous complaints. See Bloomington v. Westinghouse Electric Corp., 891 F.2d 611, 617 (7th Cir.1989) (motion to amend denied where proposed amendment did not materially alter the prior pleading); McGlinchy v. Shell Chemical Co., 845 F.2d 802, 809-10 (9th Cir.1988) (amendment failed to cure the previous pleadings). The district court did not abuse its discretion" }, { "docid": "1542795", "title": "", "text": "of the union; (4) Failure to grant the charged Plaintiffs, constitutional procedural due process; (5) Taking unauthorized appeals and other legal actions in the name of APFA which were intended to, and which did, maintain the government of APFA in a dismantled state for over a year; (6) Failure and refusal to allow base chairperson Plaintiffs to perform the duties of their offices, to maintain their status and represent their constituent members at the quarterly Board meetings from March 3, 1984 to April 1985; (7) Financing, agreeing to finance, and attempting to finance with union funds the defense of the individual defendants herein. . See, e.g., Sabolsky v. Budzanoski, 457 F.2d 1245, 1252 (3d Cir.) (finding a letter requesting internal relief sufficient), cert. denied, 409 U.S. 853, 93 S.Ct. 65, 34 L.Ed.2d 96 (1972). . Dinko, 531 F.2d at 73. . We need not decide the breadth of § 501 fiduciary duties, as two panels twice before also have refused to determine. See Ray, 753 F.2d at 390 n. 2; Vincent v. International Brotherhood of Electrical Workers, 622 F.2d 140, 143 (5th Cir.1980). . We thus do not reach Adams-Lundy’s contention that he is excused from § 501(b)’s requirements because it would have been futile to request the union to correct financial improprieties. Some courts indeed have stated that a § 501(b) request need not be made if the request would have been futile. See, e.g., McNamara v. Johnston, 522 F.2d 1157, 1163 (7th Cir.1975) (”[I]t is apparent that a demand for relief would have been futile ... [and] plaintiffs’ failure to make such a request is excused.’’), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976); Sabolsky, 457 F.2d at 1253 (“[SJtrict use of any exhaustion requirement would not be warranted ... [because] a request to sue would have been an exercise in futility.”). Other courts have rejected the futility doctrine. See Flaherty, 574 F.2d at 487; Dinko, 531 F.2d at 72; Cassidy, 405 F.2d at 232. This circuit has not addressed the issue. . 18 U.S.C. § 1961 et seq. . See Stevens v. Lowder," } ]

[ { "docid": "18521990", "title": "", "text": "NRA indicates that subsection (f)(9) is intended to create an “amnesty” regarding undercharge claims described therein, see House Report 103-359, p. 10, and the section-by-section summary restates this intent. Id. at p. 12. The House Report, like the statutory language, also links the conditions set forth in (f)(1)(A) & (B) to the settlement of claims. Id. at pp. 11-12. And the legislative history, like the statutory language and structure, belies any claim that the bar created by (f)(9) applies only where the settlement options listed in subsections (f)(2), (f)(3), and (f)(4) would apply. The unsuccessful Senate version of the NRA expressly referenced subsection (f)(1)(A) in the text of its analogue to subsection (f)(9), see North Penn Transfer, Inc. v. ATD-American Co., 175 B.R. 168, 170 n. 1 (E.D.Pa.1994) (and legislative materials cited therein), and so did a prior version of the legislation. See Senate Committee on Commerce, Science, and Transportation, Report on S. 1675, the Undercharge Equity Act of 1992, S.Rep. No. 102-359, 102 Cong., 2d Sess., (1992) pp. 2, 10, 15. But these drafts did not become law. In contrast, the final version of the NRA enacted by Congress does not reference the provisions of (f)(1)(A) in subsection (f)(9). This significant and clearly deliberate omission defeats any claim that the bar created by subsection (f)(9) only operates with respect to claims brought by a carrier that satisfies the conditions set forth in subsection (f)(1)(A). Thus, we conclude that the conditions set forth in 49 U.S.C. § 10701(f)(1)(A) need not be satisfied in order for a shipper to enjoy the immunity from undercharge claims provided by § 10701(f)(9). See In re: Jones Truck Lines, Inc., 57 F.3d at 647—49; Matter of Brown Transport Truckload, 176 B.R. 82, 86 (Bankr.N.D.Ga.1994) (citing cases). The operation of § 10701(f)(9) does not violate the antiforfeiture provisions of the Bankruptcy Code. The conditions set forth in subsection (f)(1)(A) do not make the operation of § 10701(f)(9) contingent on the financial condition of the carrier/debtor bringing an undercharge claim. The Negotiated Rates Act was designed to limit the undercharge recovery of bankrupt companies. Section 9, a" } ]

[ { "docid": "21099827", "title": "", "text": "liability under paragraph 9. We find this argument to be unpersuasive. First, if Congress intended to condition application of § 10701(f)(9) on the operating status of the carrier it could have done so clearly by listing paragraph 9 along with paragraphs 2 through 4 in § 10701(f)(1)(A). See Jones Truck Lines, Inc. v. Whittier Wood Products Co., 57 F.3d 642, 648 (8th Cir.1995). The trustee further contends that his interpretation gives meaning to the “notwithstanding paragraphs (2), (3) and (4)” language in paragraph 9. However, his is not the only interpretation. We are of opinion that Congress included this language to clarify that relief under paragraph 9 is available to shippers facing undercharge claims by nonoperating carriers; such shippers are not limited to the settlement options in paragraphs (2), (3) or (4). Because we conclude that paragraph 9 applies to undercharge claims, regardless of the financial condition of the carrier, its application to Bulldog’s bankrupt estate does not violate § 541(c)(1). 2. We next turn to the applicability in bankruptcy of the settlement options and the unreasonable practice cause of action. The settlement options of subsection 2(a), codified at § 10701(f)(2)-(4), and the unreasonable practice claim in subsection 2(e), not codified, apply only to undercharge claims brought by carriers no longer transporting property. 49 U.S.C. § 10701(f)(1)(a); Rates Act § 2(e)(1). The district court concluded that this restriction is based on Bulldog’s financial condition. We disagree. A carrier may be financially troubled and continue to operate outside of bankruptcy; and a carrier that files a petition for bankruptcy under Chapter 11, and even Chapter 7 in limited circumstances, can still operate. See 11 U.S.C. §§ 721, 1108. The settlement options and the unreasonable practice defense are not available to shippers facing undercharge claims brought by such carriers. See, e.g., Gross Common Carrier, Inc. v. A.B. Dick Co., 861 F.Supp. 638, 641 (N.D.I11.1993). On the other hand, a financially stable carrier may cease to operate for any reason at all and be subject to those provisions. The trustee argues that Congress’ use of the restriction “no longer transporting property” is merely" }, { "docid": "11761861", "title": "", "text": "the NRA, 49 U.S.C. § 10701(f)(9). The IXL court determined that although NRA § 2(a) is not expressly conditioned on “the insolvency or financial condition of the debtor,” 11 U.S.C. § 541(c)(1)(B), it is conditioned on a carrier’s nonoperating status and, thus, implicitly contingent on the debtor’s financial condition. Id, at 612. In its analysis the court stated: Even though nonoperating is not a synonym for financial condition, whether a business has ongoing operations is certainly a part of the financial condition of the business. A business’s financial condition is the broader concept which necessarily includes the operating or nonoperating status of that business. To say the operating status of a business is not a financial condition of the business is to ignore reality. Id. The court in IXL failed to focus on the exemption provision under which the defendant in that case was relying, 49 U.S.C. § 10701(f)(9). Although the exemption provisions of NRA § 2(a), 49 U.S.C. § 10701(f)(2), (3) and (4), (settlement provisions), and NRA § 2(e), (unreasonable practice defense), are conditioned on the carrier no longer transporting property or transporting property for purposes of avoiding the application of these subsections, this condition is not found in the language of the small business exemption of NRA § 2(a), 49 U.S.C. § 10701(f)(9). Congress expressly conditioned the application of § 10701(f)(2), (3), (4) and NRA § 2(e) on the carrier’s non-operating status but omitted such language from § 10701(f)(9). Under a strict interpretation of the plain language of the NRA, therefore, Congress intended to provide unconditional amnesty to small businesses from liability for undercharge claims. See H.R.Rep. No. 103-359,103d Cong., 1st Sess. 10 (1993) U.S.Code Cong. & Admin.News 1993, pp. 2534, 2537. Consequently, Bankruptcy Code § 541(c)(1) does not preclude application of the small business exemption in bankruptcy eases. See Lifschultz, 174 B.R. at 274 & 277-78; North Penn, 170 B.R. at 567-68; Best Refrigerated, 168 B.R. at 984-85. Assuming arguendo, however, that 49 U.S.C. § 10701(f)(9) is conditioned on the nonoperating status of the debtor, Bankruptcy Code § 541(e)(1) still would not prevent its application. As recognized," }, { "docid": "21099826", "title": "", "text": "This paragraph allows certain shippers to bypass the settlement provisions and avoid liability. Examining § 2 in its entirety, we are of opinion that the requirements of 49 U.S.C. § 10701(f)(1)(A) do not apply to shippers seeking to defeat claims under paragraph 9. Section 10701(f)(1) reads in part: ... .the person against whom the claim is made may elect to satisfy the claim under the provisions of paragraph (2), (3), or fy) of this subsection, upon showing that- (A) the carrier or freight forwarder is no longer transporting property or is transporting property for the purpose of avoiding application of this subsection .... 49 U.S.C. § 10701(f)(1) (emphasis added). Paragraphs 2, 3, and 4 contain the settlement options. 49 U.S.C. § 10701(f)(2)-(4). This section does not list paragraph 9 as one of the paragraphs limited in application to non-operating carriers. The trustee argues, however, that because paragraph 9 states that it applies “notwithstanding paragraphs (2), (3), and (4),” a shipper must qualify for relief under the settlement provisions before it is eligible for relief from liability under paragraph 9. We find this argument to be unpersuasive. First, if Congress intended to condition application of § 10701(f)(9) on the operating status of the carrier it could have done so clearly by listing paragraph 9 along with paragraphs 2 through 4 in § 10701(f)(1)(A). See Jones Truck Lines, Inc. v. Whittier Wood Products Co., 57 F.3d 642, 648 (8th Cir.1995). The trustee further contends that his interpretation gives meaning to the “notwithstanding paragraphs (2), (3) and (4)” language in paragraph 9. However, his is not the only interpretation. We are of opinion that Congress included this language to clarify that relief under paragraph 9 is available to shippers facing undercharge claims by nonoperating carriers; such shippers are not limited to the settlement options in paragraphs (2), (3) or (4). Because we conclude that paragraph 9 applies to undercharge claims, regardless of the financial condition of the carrier, its application to Bulldog’s bankrupt estate does not violate § 541(c)(1). 2. We next turn to the applicability in bankruptcy of the settlement options and" }, { "docid": "13139525", "title": "", "text": "a dispute as to the showing under sub-paragraph (B), such dispute shall be resolved by the Commission. Pending the resolution of any such dispute, the person shall not have to pay any additional compensation to the carrier or freight forwarder. Satisfaction of the claim under paragraph (2), (3), or (4) of this subsection shall be binding on the parties, and the parties shall not be subject to chapter 119 of this title [49 USCS §§ 11901 et seq.]. . The version of S. 412 that originally passed in the Senate required that small businesses satisfy the criteria eventually codified at § 10701(f)(1)(A), (B). S. 412, 103d Cong., 1st Sess. (1993) (paragraph which would have been codified at 49 U.S.C. § 10701(f)(6)); S.Rep. No. 79, 103d Cong., 1st Sess. 6 (1993). That requirement was not included in the final language of the NRA. . Senator Hollings stated, “Small businesses, charitable organizations, and recyclers ... would be exempt from applicable undercharge claims.\" 139 Cong.Rec. § 16186 (November 18, 1993). The context does not make clear what the Senator meant by \"applicable”. . Because Congress has the authority to amend the Bankruptcy Code, it is unlikely that it would use a phrase like \"no longer transporting property” to circumvent title 11. . Lower courts are generally in accord with this result. See, e.g., In re American Freight System, Inc., 179 B.R. 952, 960 (Bankr.D.Kan.1995); In re Parker Refrigerated Service, Inc., 173 B.R. 704, 711-16 (Bankr.W.D.Wash.1994) (additional cases listed at 711); but see, e.g., In re Bulldog Trucking, Inc., 173 B.R. 517 (W.D.N.C.1994). . The United States argues that the alleged taking of the undercharge claims is not ripe for review because Jones might be entitled to pursue compensation from the government in the Claims Court under the Tucker Act, 28 U.S.C. § 1491(a)(1). Preseault v. I.C.C., 494 U.S. 1, 11-17, 110 S.Ct. 914, 921-925, 108 L.Ed.2d 1 (1990). It is unclear from the record, however, what amount Jones seeks from each of the shippers in these cases, and claims less than $10,000 can be considered by the federal district court instead of the" }, { "docid": "13139511", "title": "", "text": "is available “notwithstanding” paragraphs (2), (3), and (4). It asserts that a small business must therefore reach one of those three paragraphs before it may exercise the exemption. This argument is not persuasive. Congress included paragraph (9) along with (2), (3), and (4) in § 10701(f)(7). Had it meant to make the small business exemption contingent on operating status, it could have included a reference to paragraph (9) in § 10701(f)(1) as well. That Congress did not suggests, therefore, that a shipper need not prove that a carrier is no longer transporting property before taking advantage of the exemption. See In re Lifschultz Fast Freight Corp., 174 B.R. 271, 273-74 (N.D.Ill.1994). Any ambiguity in the text is resolved by the legislative history which makes it clear that small businesses were to be exempt. The House committee report on its bill states: In addition, the bill declares amnesty for claims involving small shippers, charitable organizations, and recyclers. The Committee believed that these groups should not be held liable for any of the undercharge claims pending against them. H.R.Rep. No. 359, 103d Cong., 1st Sess. 10, reprinted in 1993 U.S.C.C.A.N. 2534, 2537. During floor debate on the bill as amended by the House, Senator Danforth stated that the NRA would “totally exempt[ ] small shippers from undercharge claims.” 139 Cong. Rec. S16187 (November 18, 1993). Senator Hollings made a similar statement, although somewhat ambiguous. See id. at S16186. Taken as a whole the legislative history supports our reading of § 10701(f)(9). Congress intended to exempt small businesses, chart-ties, and recyclers from all undercharge claims. Because Jones has not disputed that all of the shippers in these cases are small businesses, the grants of summary judgment were proper. The NRA is applicable despite the Bankruptcy Code sections for a second reason. Even if the shippers were not small businesses, the NRA would apply to these claims because the act hinges on whether a carrier is still transporting property, not on its financial condition. As appellees note, carriers in bankruptcy may continue to operate, see Gross Common Carrier v. A.B. Dick Co., 861 F.Supp." }, { "docid": "18515692", "title": "", "text": "Sess. 10, reprinted in 1993 U.S.C.C.AN. 2534, 2537 and 139 Cong. Rec. S16187 (Nov. 18, 1993) (Statement of Senator Danforth)). The Court believes the word “undercharge” is simply a short-hand way to refer to the types of charges described in § 10701(f)(1)(B), and was not meant to refer to all additional charges of any kind that a carrier might seek to recover from a shipper. Thus, statements in the legislative history about “undercharges” comport with this Court’s construction of the statute. The House Report on the NRA declared, “The purpose of [the House bill which was mostly included in the Senate bill that passed] is to provide a statutory process for resolving disputes for claims involving negotiated transportation rates brought about by trustees for non-operating motor carriers for past transportation services.” H.R. No. 359 at 7, reprinted in 1993 U.S.C.C.AN. at 2534. This statement further indicates the provisions of (f)(1)(A) and (B) were included to establish the scope of the NRA, and should raise doubts about applying any part of the Act to operating carriers or to rates not negotiated by the parties. As indicated, the Eighth Circuit and all but one of the other courts which considered the NRA’s small business exemption were faced only with arguments based on the “no longer transporting property” provision in § 10701(f)(1)(A). Perhaps the carriers involved in those cases all conceded the charges they were trying to collect met the criteria of subparagraph (1)(B). By contrast, although AFS has already been determined to be “no longer transporting property,” American Freight System v. ICC (In re American Freight System), 174 B.R. 604 (Bankr.D.Kan.1994) (Robinson, J.), (it has appealed that ruling), it does argue that at least some of the charges it seeks do not satisfy subparagraph (1)(B). Had those courts been informed their rulings appeared to permit small-business concerns to avoid liability for charges they knew or should have known they owed, and not just for charges in addition to those they thought were all they owed because of their agreements with carriers, the courts might well have reached different conclusions about paragraph (9)." }, { "docid": "11761862", "title": "", "text": "on the carrier no longer transporting property or transporting property for purposes of avoiding the application of these subsections, this condition is not found in the language of the small business exemption of NRA § 2(a), 49 U.S.C. § 10701(f)(9). Congress expressly conditioned the application of § 10701(f)(2), (3), (4) and NRA § 2(e) on the carrier’s non-operating status but omitted such language from § 10701(f)(9). Under a strict interpretation of the plain language of the NRA, therefore, Congress intended to provide unconditional amnesty to small businesses from liability for undercharge claims. See H.R.Rep. No. 103-359,103d Cong., 1st Sess. 10 (1993) U.S.Code Cong. & Admin.News 1993, pp. 2534, 2537. Consequently, Bankruptcy Code § 541(c)(1) does not preclude application of the small business exemption in bankruptcy eases. See Lifschultz, 174 B.R. at 274 & 277-78; North Penn, 170 B.R. at 567-68; Best Refrigerated, 168 B.R. at 984-85. Assuming arguendo, however, that 49 U.S.C. § 10701(f)(9) is conditioned on the nonoperating status of the debtor, Bankruptcy Code § 541(e)(1) still would not prevent its application. As recognized, but dismissed, by the IXL court, the exemption provisions of the NRA are also applicable to nonoperating carriers which have not filed for bankruptcy. See IXL, 172 B.R. at 613. On the other hand, several provisions of the NRA would not apply to bankrupt carriers which are still transporting property. See L. Lou Allen v. Krueger Ringier, Inc. (In re L. Lou Allen), No. 93 A 550, 1994 WL 801527 (Bankr.N.D.Ill. filed October 24, 1994). Therefore, a shipper’s election under these exemption provisions is conditional upon the cessation of the carrier’s operations, independent of the carrier’s insolvency or financial condition. See North Penn, 170 B.R. at 568; Best Refrigerated, 168 B.R. at 985; see also Ardestani v. I.N.S., 502 U.S. 129, 135-37, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991) (finding that where a statute is clear on its face, its plain meaning should be obeyed). Nothing in Bankruptcy Code § 541(c)(1) prevents application of the NRA in bankruptcy cases. In reaching its conclusion, the IXL court further maintained that the legislative histo ry of" }, { "docid": "18515679", "title": "", "text": "the ICC to determine whether the carrier’s action constitutes an “unreasonable practice” under § 10701; the difference is uncollectible if the action is an “unreasonable practice.” Subsection (e)(2) of § 2 directs the ICC, in making this determination, to consider whether circumstances essentially identical to those listed in § 10701(f)(1)(B) exist. Subsection (e)(5) provides that the § 10701(f) procedure is not available if enforcement of subsection (e)(1) is sought. C. The Issues Raised by the Parties in These Proceedings 1. Must shippers notify carriers of their election to rely on paragraph (9) of § 10701(f)? AFS argues neither Valiant nor Luetzow may assert the small-business concern defense because neither notified AFS of its election to resolve AFS’s claims under § 10701(f)(9). It points out that NRA § 2(e)(5) provides that an election to proceed under § 2(e)(1) makes § 10701(f) inapplicable. However, AFS does not assert that either defendant elected to proceed under § 2(e)(1), so § 2(e)(5) is irrelevant to these cases. AFS also refers to this Court’s order which directed AFS to give the defendants in its freight charge collection eases the notice required by subparagraph (8)(C) of § 10701(f) to trigger a time limit for the defendants to elect to satisfy AFS’s claims under paragraphs (2), (3), or (4). However, subparagraph (8)(A) provides that notice must be given only of an election to proceed under (2), (3), or (4). Paragraph (9) is not included. While carriers might have reasons to prefer that shippers be required to notify them that they claim to be small-business concerns or otherwise protected by paragraph (9), no provision in the NRA requires them to do so. Indeed, the notice required to trigger the election time limit is notice of paragraphs (1) to (7), not of (9). Furthermore, the NRA broadly provides shippers with two new options for resolving freight undercharge claims: (1) pay 5, 15 or 20 percent of the amount sought, or (2) go to the ICC and try to prove that the carrier’s claims constitute an “unreasonable practice,” which would excuse the shipper from paying any charges. These options present" }, { "docid": "21099817", "title": "", "text": "was signed into law on December 3, 1993. Pub.L. No. 103-180, 107 Stat. 2044, 2053. The Rates Act does not completely repeal outright the filed rate requirement, see 49 U.S.C. § 10701(f)(7), but attempts to provide relief to shippers facing undercharge suits. Section 2, containing the remedial provisions of the Rates Act, creates three options for shippers. First, the Rates Act creates settlement options for shippers who negotiated and relied on an unfiled rate lower than the filed rate claimed by the trustee. 49 U.S.C. § 10701(f)(2)-(4). Depending on the transportation provided, shippers can force the carrier to settle for from five to 20 percent of the value of the undercharge claim. 49 U.S.C. § 10701(f)(2)-(4). To take advantage of the settlement options, the shipper must show that the motor carrier is no longer transporting property. 49 U.S.C. § 10701(f)(1)(A). The second option is a blanket exemption from undercharge liability for shippers that qualify as small-business concerns under the Small Business Act or charitable organizations under the Internal Revenue Code. 49 U.S.C. § 10701(f)(9)(A) & (B). Shipments of recyclable material are also exempt from undercharge claims. 49 U.S.C. § 10701(f)(9)(C). We decide today that this blanket exemption applies whatever the operating status of the motor carrier. See infra at 111(A)(1). The third option restores the unreasonable practice claim as overruled by the Supreme Court in Maislin. Rates Act § 2(e)(1) (not codified). However, the Rates Act restores this claim only for undercharges arising out of transportation services provided before September 30, 1990, which includes the shipments involved in these appeals. Again, shippers can only assert this claim against carriers no longer transporting property. Rates Act § 2(e)(1). Section 8 of the Rates Act provides that the ICC “shall have jurisdiction to, and shall, resolve” disputes over whether the shipments provided by a carrier were contract or common carriage. 49 U.S.C. § 11101(d). A contract carrier provides transportation services to shippers under a continuing agreement to provide motor vehicles for a shipper’s exclusive use, or a continuing agreement designed to meet the distinct needs of a shipper. 49 U.S.C. § 10102(16)(B)." }, { "docid": "18521988", "title": "", "text": "statute and the legislative history, we conclude that the conditions set forth in (f)(1)(A) do not apply to subsection (f)(9). First, and most importantly, we are convinced that Congress did not intend to limit the application of (f)(9) to undercharge claims made by carriers described in (f)(1)(A). Where Congress intended to reference this limitation, it did so. See, e.g., Section 2(a), § 10701(f)(6); Section 2(g). This reading of the statute also jibes with the structure of § 10701(f) and the “Notwithstanding” language in subsection (f)(9). Subsections (f)(2), (f)(3) & (f)(4) describe classes of undercharge claims and set a percentage of the claim that, if paid by the shipper, satisfies the claim. 49 U.S.C. § 10701(f)(l)(B)(v). In contrast, subsection (f)(9) is not a settlement option; it is an absolute bar on the class of undercharge claims created therein. That total bar operates notwithstanding the more limited settlement options set forth in (f)(2), (f)(3), and (f)(4). For this reason, where (f)(1) links the conditions set forth in (f)(1)(A) to subsections (f)(2), (f)(3), and (f)(4), the statute is addressing the satisfaction of valid undercharge claims under those subsections. But that portion of the statute does not apply to the total bar on claims provided separately by subsection (f)(9). The “In General” heading at the beginning of (f)(1) does not require a different result because the general rule created by § 10701(f) is the satisfaction of undercharge claims; the total bar on claims created by (f)(9) is an exception to the general rule. Finally, subsection (f)(7) is an example of where Congress specifically intended to treat subsection (f)(9) and subsections (f)(2), (f)(3) & (f)(4) together. It did so by listing the subsections together in the paragraph under (f)(7). See Matter of Best Refrigerated Exp., Inc., 168 B.R. 978, 984-85 (Bankr.D.Neb.1994). “Had Congress intended the ‘no longer transporting property’ clause of (f)(1)(A) to apply to (f)(9), the small business concern paragraph, it would have listed paragraph (9) with (2), (3) and (4) under 10701(f)(1), as it did under 10701(f)(7).” Id. The legislative history also supports this reading of the statute. The House Report on the" }, { "docid": "18515693", "title": "", "text": "or to rates not negotiated by the parties. As indicated, the Eighth Circuit and all but one of the other courts which considered the NRA’s small business exemption were faced only with arguments based on the “no longer transporting property” provision in § 10701(f)(1)(A). Perhaps the carriers involved in those cases all conceded the charges they were trying to collect met the criteria of subparagraph (1)(B). By contrast, although AFS has already been determined to be “no longer transporting property,” American Freight System v. ICC (In re American Freight System), 174 B.R. 604 (Bankr.D.Kan.1994) (Robinson, J.), (it has appealed that ruling), it does argue that at least some of the charges it seeks do not satisfy subparagraph (1)(B). Had those courts been informed their rulings appeared to permit small-business concerns to avoid liability for charges they knew or should have known they owed, and not just for charges in addition to those they thought were all they owed because of their agreements with carriers, the courts might well have reached different conclusions about paragraph (9). In the alternative, the Court believes it is possible, though less reasonable on the whole, to accept the conclusion that the omission of paragraph (9) from paragraph (1) means shippers need not show the carrier is no longer transporting property, but still conclude they must show the charges sought meet the criteria set out in subparagraph (1)(B). As indicated above, the use of the definite article “the” in paragraph (9) indicates the charges mentioned there have been identified previously, and the most obvious reference would be back to those charges described in subparagraph (1)(B). Under this construction based on language that does appear in paragraph (9), even though they would not have to show that AFS is no longer transporting property, Valiant and Luetzow would still need to show that AFS offered them a rate not on file with the ICC, they tendered freight in reliance on the offered rate, AFS did not properly file the offered rate, AFS billed them for the offered rate and they paid it, and AFS is now demanding they" }, { "docid": "11761854", "title": "", "text": "support of its motion for summary judgment, Republic contends that NRA § 2(a) exempts small businesses from liability for freight undercharges and, because Republic qualifies as a small business, it is thus exempt from the alleged undercharge claims. 49 U.S.C. § 10701(f)(9). Section 2(a) of the NRA, 49 U.S.C. § 10701(f)(9), provides in relevant part: CLAIMS INVOLVING SMALL-BUSINESS CONCERNS, CHARITABLE ORGANIZATIONS, AND RECYCLABLE MATERIALS. — Notwithstanding paragraphs (2), (3), and (4), a person from whom the additional legally applicable and effective tariff rate or charges are sought shall not be liable for the difference between the carrier’s applicable and effective tariff rate and the rate originally billed and paid— (A) if such person qualifies as a small-business concern under the Small Business Act (15 U.S.C. 681 et seq.).... Legislative history of subparagraph (f)(9) evidences Congress’ intent to exempt small businesses from liability for undercharges. House Report number 103-359 provides: [T]he bill declares amnesty for claims involving small shippers, charitable organizations, and recyelers. The Committee believes that these groups should not be held liable for any of the undercharged claims pending against them. H.R.Rep. No. 103-359, 103d Cong., 1st Sess. 10 (1993) U.S. Code Cong. & Admin.News 1993, pp. 2534, 2537. Furthermore, several courts have held that the small business exemption precludes bankrupt motor carriers from collecting freight undercharges from qualifying shippers. See, e.g., In re Lifschultz Fast Freight Corp., 174 B.R. 271 (N.D.Ill.1994); Lewis v. H.E. Wisdom & Sons, Inc., 1994 WL 110659 (N.D.Ill. Mar. 31, 1994); North Penn Transfer, Inc. v. Polykote Corp., 170 B.R. 565 (E.D.Pa.1994); Allen v. ITM, Ltd. South, 167 B.R. 63 (M.D.N.C.1994); In re Best Refrigerated Express, Inc., 168 B.R. 978 (Bankr.D.Neb.1994). The Small Business Act (“SBA”) does not define a “small-business concern.” See 15 U.S.C. § 632. The Code of Federal Regulations, 13 C.F.R. § 121.601, however, sets forth standards in the table of Standard Industrial Classification (“SIC”), for what qualifies as a small-business concern under the SBA. Defendant qualifies as a small-business concern under the SBA. (Republic Rule 12(M) Statement ¶ 3 and Republic Memorandum in Support of Defendant’s Motion for Summary Judgment" }, { "docid": "18515695", "title": "", "text": "pay some higher rate that was on file. D. Conclusion The defendants’ motions for summary judgment must be denied because: (1) their affidavits are insufficient, and (2) they have not even attempted to show that the charges AFS seeks to recover from them satisfy the criteria set by 49 U.S.CA. § 10701(f)(1)(B). They were not, however, required to make any election to rely on the small-business concern exemption, and have adequately raised the exemption as an affirmative defense to AFS’s claims. AFS shall have thirty days from entry of this order to conduct discovery on the defendants’ status as small-business concerns. IT IS SO ORDERED. . Rather than being codified, NRA § 2(e) has been placed in the United States Code as a note to § 10701. . In a summary judgment decision, Chief District Judge Van Bebber of this district ruled a shipper had established that it was a qualified small-business concern under the NRA and said it did not need to make any additional showing to rely on the exemption. Lewis v. Squareshooter Candy Co., 176 B.R. 54, 56-57 (D.Kan.1994). However, it appears that the plaintiff-trustee was arguing only that the shipper was not a qualified small-business concern and that the NRA violated the carrier’s constitutional rights. The statement that no additional showing was required was not a holding that the § 10701(f)(1)(A) and (B) showings need not be made." }, { "docid": "18515684", "title": "", "text": "are small-business concerns under the Small Business Act, 15 U.S.C.A. § 631, et seq. AFS contends they must also make the showings required by § 10701(f)(1)(A) and (B). A number of courts, including the Eighth Circuit, have rejected carriers’ arguments that small-business concerns relying on § 10701(f)(9) must make the showing required by (f)(1)(A) that the carrier is no longer transporting property. Jones Truck Lines v. Whittier Wood Products (In re Jones Truck Lines), 57 F.3d 642, 647-49 (8th Cir.1995); De’Medici v. FDSI Management Group (In re Lifschultz Fast Freight Corp.), 174 B.R. 271, 273-74 (N.D.Ill.1994); North Penn Transfer v. Polykote Corp., 170 B.R. 565, 567-68 (E.D.Pa.1994); Hoarty v. Midwest Carriers (In re Best Refrigerated Express), 168 B.R. 978, 984-85 (Bankr.D.Neb.1994); see also North Penn Transfer v. ATD-American Co., 175 B.R. 168, 170-71 (E.D.Pa.1994) (rejecting assertion NRA is conditioned on financial condition of carrier, court ruled small business exemption does not require showing that carrier is no longer transporting property); Scroggins v. Southern Wipers (In re Brown Transport Truckload), 176 B.R. 82, 85-86 (Bankr.N.D.Ga.1994) (same); Jones Truck Lines v. Polyflex Film & Converting, 173 B.R. 576, 580-81 (S.D.Miss.1994) (rejecting assertion small business exemption is conditioned on insolvency or financial condition of carrier, court ruled company need only show it is qualified small business to obtain the exemption). Only one court has been faced with the argument that a small-business concern must not only show that the carrier is no longer transporting property but also that the charges sought to be collected satisfy the requirements of (f)(1)(B); that court did reject both assertions. Adrian Waldera Trucking v. Quality Liquid Feeds, 848 F.Supp. 853, 855-56 (W.D.Wis.1994). After careful consideration of the provisions of the NRA and its legislative history, the Court must respectfully disagree with all these courts. The Eighth Circuit’s decision in Jones Truck Lines, 57 F.3d 642, 647-49 fairly reflects the reasoning applied by all these courts in reaching their conclusions. The Court will describe that ruling before explaining its own reasons for disagreeing. Jones Truck Lines, Inc. (Jones), appealed a summary judgment ruling that the Negotiated Rates Act of" }, { "docid": "18515694", "title": "", "text": "In the alternative, the Court believes it is possible, though less reasonable on the whole, to accept the conclusion that the omission of paragraph (9) from paragraph (1) means shippers need not show the carrier is no longer transporting property, but still conclude they must show the charges sought meet the criteria set out in subparagraph (1)(B). As indicated above, the use of the definite article “the” in paragraph (9) indicates the charges mentioned there have been identified previously, and the most obvious reference would be back to those charges described in subparagraph (1)(B). Under this construction based on language that does appear in paragraph (9), even though they would not have to show that AFS is no longer transporting property, Valiant and Luetzow would still need to show that AFS offered them a rate not on file with the ICC, they tendered freight in reliance on the offered rate, AFS did not properly file the offered rate, AFS billed them for the offered rate and they paid it, and AFS is now demanding they pay some higher rate that was on file. D. Conclusion The defendants’ motions for summary judgment must be denied because: (1) their affidavits are insufficient, and (2) they have not even attempted to show that the charges AFS seeks to recover from them satisfy the criteria set by 49 U.S.CA. § 10701(f)(1)(B). They were not, however, required to make any election to rely on the small-business concern exemption, and have adequately raised the exemption as an affirmative defense to AFS’s claims. AFS shall have thirty days from entry of this order to conduct discovery on the defendants’ status as small-business concerns. IT IS SO ORDERED. . Rather than being codified, NRA § 2(e) has been placed in the United States Code as a note to § 10701. . In a summary judgment decision, Chief District Judge Van Bebber of this district ruled a shipper had established that it was a qualified small-business concern under the NRA and said it did not need to make any additional showing to rely on the exemption. Lewis v. Squareshooter" }, { "docid": "13665453", "title": "", "text": "applicability of the “procedures” set forth in ¶¶ (2) — (4) of 49 U.S.C. § 10701(f) depends upon the cessation of the carrier’s operations. The plaintiff trustee contends that conditioning the application of the NRA on the operating status of a carrier is the equivalent of conditioning the application of the NRA on the carrier’s financial condition (because a non-operating carrier presumably generates no revenue). Because such a condition would violate the anti-forfeiture provisions of the Bankruptcy Code, the trustee concludes that the NRA is unenforceable against a bankruptcy trustee. The bankruptcy court, however, did not agree with the trustee’s “conditional” interpretation of § 10701(f). The bankruptcy court discounted the trustee’s argument, finding that the defendant was not seeking to apply the I¶ (2)-(4) “procedures” for resolving claims under § 10701(f). Rather, the defendant was invoking ¶ (9) of that subsection, which “unconditionally extinguishes a small-business concern’s liability to pay undercharges.” Proposed Findings at 10. Finding that ¶ (9) operates independently of ¶ (1), it did not therefore rely upon the debt- or’s insolvency or financial state or operating status. Id. As such, the bankruptcy court .found the trustee’s anti-forfeiture provision argument to be inapplicable. Id. at 10-11. This court agrees with the bankruptcy court’s reading of the statute. In Hoarty v. Midwest Carriers Corp. (In re Best Refrigerated Express), the court, after a careful examination of § 10701(f), concluded that the “no longer transporting property” provision of the Act did not apply to the application of the small-business defense enumerated in ¶ (9). Hoarty v. Midwest Carriers Corp. (In re Best Refrigerated Express), 168 B.R. 978, 984-85 (Bankr.D.Neb.1994). In so holding, the Best Refrigerated court looked to the language of the statute. Notably, the court noted that nothing exists in either paragraph (1) or (9) which would indicate that the “no longer transporting property” provision of § 10701(f)(1)(A) must be met in order to claim the ¶ (9) small-business exemption. Id. at. 984. Had Congress intended for these provisions to apply to the small-business defense, it could have either incorporated them by reference or set them forth in the" }, { "docid": "13139510", "title": "", "text": "Revenue Code of 1986 [26 USCS § 501(c)(3) ] and exempt from tax under section 501(a) of such Code [26 USCS § 501(a) ], or (C) if the cargo involved in the claim is recyclable materials, as defined in section 10733. Jones argues that a shipper must also show that a carrier making an undercharge claim has ceased operations before it can use the small business exemption. The shippers respond that the exemption applies regardless of a carrier’s operating status. The answer must be found by examining the relevant sections of the statute. Paragraphs (2), (3), and (4) referenced in § 10701(f)(1) are the settlement provisions. That part of the law explicitly requires that a shipper prove a carrier is not transporting property before the shipper is entitled to choose a settlement option. Section 10701(f)(1) does not, however, include the small business exemption paragraph in the list of paragraphs which may only be exercised upon such a showing. Jones argues that the omission of the exemption paragraph in that list is irrelevant because the exemption is available “notwithstanding” paragraphs (2), (3), and (4). It asserts that a small business must therefore reach one of those three paragraphs before it may exercise the exemption. This argument is not persuasive. Congress included paragraph (9) along with (2), (3), and (4) in § 10701(f)(7). Had it meant to make the small business exemption contingent on operating status, it could have included a reference to paragraph (9) in § 10701(f)(1) as well. That Congress did not suggests, therefore, that a shipper need not prove that a carrier is no longer transporting property before taking advantage of the exemption. See In re Lifschultz Fast Freight Corp., 174 B.R. 271, 273-74 (N.D.Ill.1994). Any ambiguity in the text is resolved by the legislative history which makes it clear that small businesses were to be exempt. The House committee report on its bill states: In addition, the bill declares amnesty for claims involving small shippers, charitable organizations, and recyclers. The Committee believed that these groups should not be held liable for any of the undercharge claims pending against" }, { "docid": "18515685", "title": "", "text": "Jones Truck Lines v. Polyflex Film & Converting, 173 B.R. 576, 580-81 (S.D.Miss.1994) (rejecting assertion small business exemption is conditioned on insolvency or financial condition of carrier, court ruled company need only show it is qualified small business to obtain the exemption). Only one court has been faced with the argument that a small-business concern must not only show that the carrier is no longer transporting property but also that the charges sought to be collected satisfy the requirements of (f)(1)(B); that court did reject both assertions. Adrian Waldera Trucking v. Quality Liquid Feeds, 848 F.Supp. 853, 855-56 (W.D.Wis.1994). After careful consideration of the provisions of the NRA and its legislative history, the Court must respectfully disagree with all these courts. The Eighth Circuit’s decision in Jones Truck Lines, 57 F.3d 642, 647-49 fairly reflects the reasoning applied by all these courts in reaching their conclusions. The Court will describe that ruling before explaining its own reasons for disagreeing. Jones Truck Lines, Inc. (Jones), appealed a summary judgment ruling that the Negotiated Rates Act of 1993 (NRA) precluded it from recovering undercharges from shippers. Insofar as relevant here, Jones argued that shippers claiming the small business exemption under 49 U.S.C.A. § 10701(f)(9) had to show that the carrier making undercharge claims against them had ceased operations before they could use the exemption, that is, they had to make the showing required under subparagraph (f)(1)(A). The 8th Circuit began its analysis by noting paragraphs (2), (3), and (4) are referred to in paragraph (1), which explicitly requires a shipper to prove the carrier is not transporting property before the shipper may choose to settle under one of those paragraphs. Paragraph (9), the Circuit pointed out, is not listed in paragraph (1). Jones argued that because paragraph (9) is available “notwithstanding paragraphs (2), (3), and (4),” one of those paragraphs would have to be applicable before the shipper could exercise the exemption in paragraph (9). The Circuit then pointed out that in paragraph (7), Congress did include paragraph (9) along with (2), (3), and (4), and said Congress would also have included" }, { "docid": "18515683", "title": "", "text": "and delay arising from the need to conduct discovery about the defendants’ small-business status and the possible loss of its claims if the defense is successful. This prejudice, however, was created when Congress passed the NRA, not by the defendants’ actions. Valiant and Luetzow have not added measurably to the prejudice by waiting to assert the defense until sixteen to seventeen months after the NRA took effect. That delay should not have increased the difficulty of proving whether they qualify as small-business concerns. The Court concludes the defendants should be allowed to raise the defense. The Court will give AFS thirty days to conduct discovery on their claims to qualify as small-business concerns. 3. Must shippers prove that the carrier suing them is no longer transporting property under § 10701(f)(1)(A) and that the charges sought meet the criteria set out in § 10701(f)(1)(B) in order to be exempted from the charges under § 10701(f)(9)? Valiant and Luetzow contend that under the NRA, they can exempt themselves from all AFS’s charges simply by showing that they are small-business concerns under the Small Business Act, 15 U.S.C.A. § 631, et seq. AFS contends they must also make the showings required by § 10701(f)(1)(A) and (B). A number of courts, including the Eighth Circuit, have rejected carriers’ arguments that small-business concerns relying on § 10701(f)(9) must make the showing required by (f)(1)(A) that the carrier is no longer transporting property. Jones Truck Lines v. Whittier Wood Products (In re Jones Truck Lines), 57 F.3d 642, 647-49 (8th Cir.1995); De’Medici v. FDSI Management Group (In re Lifschultz Fast Freight Corp.), 174 B.R. 271, 273-74 (N.D.Ill.1994); North Penn Transfer v. Polykote Corp., 170 B.R. 565, 567-68 (E.D.Pa.1994); Hoarty v. Midwest Carriers (In re Best Refrigerated Express), 168 B.R. 978, 984-85 (Bankr.D.Neb.1994); see also North Penn Transfer v. ATD-American Co., 175 B.R. 168, 170-71 (E.D.Pa.1994) (rejecting assertion NRA is conditioned on financial condition of carrier, court ruled small business exemption does not require showing that carrier is no longer transporting property); Scroggins v. Southern Wipers (In re Brown Transport Truckload), 176 B.R. 82, 85-86 (Bankr.N.D.Ga.1994) (same);" }, { "docid": "13665454", "title": "", "text": "financial state or operating status. Id. As such, the bankruptcy court .found the trustee’s anti-forfeiture provision argument to be inapplicable. Id. at 10-11. This court agrees with the bankruptcy court’s reading of the statute. In Hoarty v. Midwest Carriers Corp. (In re Best Refrigerated Express), the court, after a careful examination of § 10701(f), concluded that the “no longer transporting property” provision of the Act did not apply to the application of the small-business defense enumerated in ¶ (9). Hoarty v. Midwest Carriers Corp. (In re Best Refrigerated Express), 168 B.R. 978, 984-85 (Bankr.D.Neb.1994). In so holding, the Best Refrigerated court looked to the language of the statute. Notably, the court noted that nothing exists in either paragraph (1) or (9) which would indicate that the “no longer transporting property” provision of § 10701(f)(1)(A) must be met in order to claim the ¶ (9) small-business exemption. Id. at. 984. Had Congress intended for these provisions to apply to the small-business defense, it could have either incorporated them by reference or set them forth in the body of the relevant paragraphs. Congress chose to do neither. We hold that the plain language of the statute supports the finding that the “In general” provisions of ¶ (1) do not apply to the small business defense as set forth in ¶ (9) of § 10701(f). As such, ¶ (9) operates independently of ¶ (1) and unconditionally relieves small-business concerns from liability for undercharges. Given that no material facts are in dispute, the bankruptcy court correctly found that the defendant, as a small-business concern, was exempt from undercharge liability under 49 U.S.C. § 10701(f)(9). Summary judgment in favor of the defendant, FDSI, was therefore appropriate. The Proposed Findings of Fact and Conclusions of Law of the bankruptcy court •are affirmed. The plaintiffs objections are overruled. CONCLUSION For the reasons set forth above, we affirm the bankruptcy court’s Proposed Findings of Fact and Conclusions of Law. The defendant’s motion for summary judgment is granted. The plaintiffs objections are overruled. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW I. INTRODUCTION The Debtor in this chapter 7" } ]

[ { "docid": "19099240", "title": "", "text": "so important that the failure to' give the requested instruction seriously impaired the defendant’s ability to defend himself. United States v. Stone, 702 F.2d 1333, 1339 (11th Cir.1983); Pine v. United States, 135 F.2d 353, 355 (5th Cir.), cert. denied, 320 U.S. 740, 64 S.Ct. 40, 88 L.Ed. 439 (1943); see United States v. Hitsman, 604 F.2d 443, 446 (5th Cir.1979). Here, to the extent the requested instruction was correct, it was substantially covered by the instruction the trial court gave. The first sentence of the requested instruction was not a clear statement of the law. Any willfulness requirement may or may not be “special”; this elucidated nothing helpful for the jury. The second sentence was substantially covered by the willfulness instruction and the court’s other instructions; those instructions placed the burden on the government to prove every element of the offense beyond a reasonable doubt, including that the defendants purposefully intended to violate the reporting law. The third sentence was also adequately covered; nothing in the judge’s instructions would have led the jury to believe that knowing the law was enough in itself to show willfulness. Accordingly we find no error in the trial judge’s rejection of the requested instructions. D. The Expert Witness Weaner and McDonald called a banking expert, Gerald Stogniew, to testify. Stog-niew had been in banking for twenty-two years, had worked extensively as a bank auditor, and had conducted “director’s audits.” Appellants asked the trial court to find Stogniew qualified as an expert on bank management for the purpose of testifying that banks universally ignored currency reporting requirements at the time of the Cohen transactions. They argued that this testimony, if received, would permit an inference that their failure to file the CTR's was not willful. The government objected that the testimony was not relevant to Weaner or McDonald’s willfulness. The trial judge sustained the objection. The trial judge has broad discretion in admitting or excluding expert testimony, and his action is to be upheld unless manifestly erroneous. United States v. Costa, 691 F.2d 1358, 1361 (11th Cir.1982). We find no error here. The evidence" } ]

[ { "docid": "12084031", "title": "", "text": "the instruction that he be resentenced in a manner consistent with this opinion. . Rule 7(f) provides in relevant part that \"[t]he court may direct the filing of a bill of particulars.” . The entire text of the provision reads: It is understood that Larry H. Linn must at all times give full, complete and truthful information to the government and testimony before the grand jury and at any pretrial proceeding, trial or trials. In this respect, Larry H. Linn agrees to submit to a polygraph examination to be administered by agents of the government, if in the opinion of this office, such tests are warranted. Appendix at 192. . Rule 32(c)(3)(D) provides: (D) If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. . Indeed, the government candidly acknowledged this error in its brief on appeal: In this case, the district court’s comments just prior to sentencing suggest that the court accepted the government’s version. Yet, the court did not make specific findings. Nor did the court append its comments to the pre-sen-tence report in accordance with Rule 32(c)(3)(D). Thus, we do not oppose this Court's vacating appellant's sentence and remanding the case for resentencing." }, { "docid": "23464134", "title": "", "text": "the defendant and his counsel have had an opportunity to read and discuss the presentence report. There is no question that both Petty and his counsel read the report. An affidavit, docket entries and a notice signed by Petty all state that he and his attorney had read the report. Under FED. R. CRIM. P. 32(c)(3)(D): (D) If the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. (Emphasis added.) Petty contends that his counsel did allege factual inaccuracies and that the district court failed to make a finding regarding these inaccuracies as required. The allegations on which Petty relies are contained in the following statement by his attorney: Whereas, he was characterized, over and over again through the PSI * * * all of his uncharged and unconvicted offenses, many of which have been committed by someone, at some time, but none of which defendant was ever charged with, much less convicted of. Because this comment is vague and cryptic and does not allege any specific inaccuracies, it does not fall under Rule 32(c)(3)(D). Because counsel for the appellant failed to make proper objections to the report’s contents, the district court was not required to conduct a further investigation under Rule 32, and its failure to do so does not constitute reversible error. We have considered the other issues raised by appellant and find them to be without merit. Accordingly, we affirm the judgment of the district court. . The Honorable John F. Nangle, United States District Judge, Eastern District of Missouri." }, { "docid": "3804656", "title": "", "text": "U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). While the appellants did not receive a “perfect” trial we are confident that they did receive a fair trial in accord with traditional and fundamental standards of due process. Accordingly, the convictions of appellants Coello and Carballo are AFFIRMED. III. ALEMAN’S APPEAL 1. Background Ricardo Aleman was tried separately and convicted of violating federal narcotics and tax laws. Aleman’s involvement in the Miami River Cops Case involved guarding 400 kilos of cocaine that his co-defendants had ripped off from a boat docked in the Jones Boat Yard on the Miami River. Ale-man was paid $100,000 for his services which he did not report as income on his federal income tax return. On appeal, Ale-man makes two arguments. First, Aleman presents a two page laundry list of twenty five alleged instances of evidentiary and other errors whose cumulative effect, he alleges, deprived him of his right to a fair trial. While this list is basically limited to alleging numerous instances of improper admission of co-conspirator testimony, limitations of cross-examination and improper prosecutorial remarks, Aleman cites only two cases and offers less than three full pages of argument to bolster these allegations. Aleman then asserts that the trial court reversibly erred in failing to instruct the jury on his defense theory. 2. Discussion After carefully reviewing the record portions corresponding to Aleman’s twenty-five item list, we conclude that the court’s evidentiary rulings were correct, and the government’s comments were infrequent and innocuous. The evidence against Aleman was extremely strong, and, beyond any doubt, Aleman received a fair trial. Aleman’s argument concerning the court’s refusal to instruct the jury on his defense theory is specious. Quite simply, Aleman denies ever having guarded cocaine and explains his receipt of the $100,-000, which the evidence overwhelming proved to be either possessed or expended by him, as merely a non-taxable gift made to him by his corrupt police friends. The refusal to give a requested instruction warrants reversal only if (l).the proffered instruction was substantially correct, (2) the requested instruction was not addressed in the charge actually" }, { "docid": "7781982", "title": "", "text": "decisions made by the [law enforcement officers].” Id. Kay’s contention that local law enforcement officials essentially made the decision to charge Kay under federal law is conclusory and certainly is not supported by “convincing evidence” as required by Andersen. Kay also contends that the district court failed to provide him with an adequate opportunity to present information disputing the two-point enhancement under U.S.S.G. § 2D1.1(b)(1). Kay argues that the court failed to comply with Rule 32(c)(3)(A) of the Federal Rules of Criminal Procedure, which provides that [ t]he court shall afford the defendant and the defendant’s counsel an opportunity to comment on the [presentence] report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it. After reviewing the sentencing hearing transcript, we conclude that the court afforded defendant ample opportunity to object to the enhancement for possession of firearms. Defendant’s contention on appeal that “the court did not provide them opportunity to object to the sentence enhancement in open court” is disingenuous. At the sentencing, the district court inquired whether defense counsel had any objections to the sentencing report other than those contained in a motion filed prior to sentencing, which did not object to the enhancement for firearms possession. De-' fense counsel responded that he had reviewed the report with defendant and that there were no additional objections. Therefore, we conclude that Kay’s contention is without merit. Kay further contends that the district court erred by failing to make specific findings as to the accuracy of information in the presentence report related to the firearm enhancement under U.S.S.G. § 2D1.1(b)(1). Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure provides that [ i]f the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report' ..., the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is- necessary because the matter controverted will not be taken into account in" }, { "docid": "16775346", "title": "", "text": "the transportation of cocaine. William N. Stevens’ role was to transport marijuana.” Joint Appendix at 92. . Fed.R.Crim.P. 32(c)(3)(D) provides: (D) If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. . In United States v. Aleman, 832 F.2d 142, 143-44 (11th Cir.1987), the court noted that at sentencing, “[i]f the defense does not contest the PSI, the procedural mechanisms set out in Rule 32(c)(3)(D) never come into play.” . In Mays, the Third Circuit found that the sentencing court had determined that appellant and counsel had the opportunity to read and discuss the PSI when, at the sentencing hearing, counsel stated: As I read the presentence report with the Defendant, Your Honor, it accurately reflects what the Government says. It accurately reflects that [sic] the Defendant still says. Mays, 798 F.2d at 80 (emphasis in original). . It is significant that counsel did not sign the document verifying that he had read the PSI. . At the sentencing hearing, the agent stated that appellant’s role “was to drive tractor trailer rigs loaded with thousands of pounds of marijuana from the site of importation to Dayton, Ohio,” and from Ohio to Louisiana. Joint Appendix at 66. . We note that in the motion for reduction of sentence brought pursuant to Fed.R.Crim.P. 35, appellant did not allege any factual inaccuracies in the PSI. Thus, the record contains no evidence to dispute the statements by the government concerning appellant’s role in the conspiracy. United States v. Rone, 743 F.2d at 1176 (Eschback, J., dissenting) (had defendant presented allegations to" }, { "docid": "343064", "title": "", "text": "EDMONDSON, Circuit Judge: In this case this Court must consider what is necessary to trigger the operation of the procedures set out in Fed.R.Crim.P. 32(c)(3)(D). Because we conclude that defendant in this case advanced no proper and sufficient allegation of factual inaccuracy with respect to his presentence investigation report, we affirm the district court’s judgment. Defendant Aleman was indicted on two counts involving violations of federal law relating to controlled substances. In accordance with the terms of a plea agreement, he subsequently pleaded guilty to one count of conspiracy to possess cocaine with intent to distribute and agreed to testify at the jury trial against his alleged co-conspirator. During Aleman’s testimony at that trial, however, the prosecution found it necessary to have Aleman declared a hostile witness; and the co-conspirator was acquitted. Defendant Aleman was sentenced to nine years’ incarceration, out of a possible maximum sentence of twenty years. Defendant subsequently filed a motion for reconsideration of sentencing, alleging that the sentencing court had failed to comply with the mandates of Fed. R.Crim.P. 32(c)(3)(D). The district court denied this motion; defendant brought this appeal. Defendant challenges the sentence imposed on several grounds and requests rehearing and resentencing. In addition to various other alleged errors, defendant contends that the district court did not meet the requirements of Fed.R.Crim.P. 32(c)(3)(D) by failing to take steps to determine the truth and to make written findings following defendant’s objection to inaccuracies in the presentence investigation report (PSI). Because this involves an issue not yet considered by this Court — how Rule 32(c)(3)(D) is effectively triggered— we will examine the matter at some length. A PSI report ordinarily is prepared by the probation service of the district court prior to sentencing of a defendant. A copy of the report is presented to defendant and defense counsel for their review sufficiently in advance of the sentencing. At sentencing, the court determines wheth er defendant has read and discussed the report with counsel and whether there are objections to the report. If the defense does not contest the PSI, the procedural mechanisms set out in Rule 32(c)(3)(D)" }, { "docid": "3804660", "title": "", "text": "(ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. ... Fed.R.Crim.P. 32(c)(3)(D). Particularly where, as in this case, the defendants have pled guilty, the rule must be strictly complied with: beyond protecting the defendant from being sentenced on inaccurate information, the PSI is deemed by prison and parole officials as an accurate record of the facts of the criminal’s history upon which the court relied at sentencing. United States v. Manotas-Mejia, 824 F.2d 360, 368 (5th Cir.1987). The record reveals that despite De La Vega’s and Betancourt’s written and oral objections to numerous substantial charges contained in their lengthy pre-sentence reports, the court failed to comply with Rule 32(c)(3)(D) by making findings as to each controverted point, or, alternatively, indicate for the record that no finding was necessary because the disputed matter would not be taken into account. Accordingly, the sentences of De La Vega and Betancourt are vacated and remanded to the district court for resentenc-ing in accordance with Rule 32(c)(3)(D). V. CONCLUSION For the reasons stated herein, the convictions of appellants Coello, Carballo, and Aleman are AFFIRMED. The sentences of De La Vega and Betancourt are VACATED and their cases are REMANDED for resentencing. . Since none of the appellants challenge the sufficiency of the evidence, we limit our recitation of the facts comprising this criminal undertaking to those helpful to the reader's understanding of the reasons for our disposition of those issues raised on appeal. . Appellants De La Vega and Betancourt pled guilty and on appeal challenge only the trial court’s compliance with sentencing procedures mandated by the federal rules of criminal procedure. . The pretrial publicity surrounding the guilty pleas entered by co-defendants Betancourt, Rojas, and De La Vega during jury selection, while relevant to our pretrial publicity analysis, does not satisfy the heavy burden associated with presumed prejudice. Additionally, the mere disappearance from counsel table of defendants Betancourt, Rojas, De La Vega and Manzanilla, particularly when coupled with the trial judge’s admonition that nothing is to be inferred by their absence, does" }, { "docid": "343072", "title": "", "text": "so as to trigger the working of Rule 32(c)(3)(D). First, references to “tone” and “version” lack specificity. Second, the terms do not indicate factual discrepancies; actually, their use suggests that the speaker objects to the overall form or viewpoint precisely because there are no grounds for objections to the factual propositions presented by the PSI. While the optimist may decry the tone of the pessimist’s description of half-empty water glass es, he cannot dispute the accuracy of his counterpart’s statement. Because of defendant’s expressed willingness to proceed with sentencing and because of the defense’s comments indicating displeasure more than true disagreement with the factual content of the PSI, we find that defendant did not raise objection to factual mistakes of the PSI and that the procedures of Rule 32(c)(3)(D) never came into play. The district court was therefore not obliged to make written findings. Accordingly, the judgment of the district court is AFFIRMED. .We have determined that these contentions are without merit and will not discuss them further. . See Fed.R.Crim.P. 32(c)(1). . See Fed.R.Crim.P. 32(c)(3)(A). . See Fed.R.Crim.P. 32(a)(1)(A). . Fed.R.Crim.P. 32(c)(3)(D) reads: If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. .This Court does not see that Rule 32 requires a sentencing court to pose specific questions (whether defendant and counsel have read the report, whether they have discussed it, whether there are any mistakes) as the Seventh Circuit determined in United States v. Rone, 743 F.2d 1169 (7th Cir.1984). We do note, however, that such precise questioning is useful" }, { "docid": "11109094", "title": "", "text": "ruling, under these facts, is not clearly erroneous. We affirm. VI. CONCLUSION We AFFIRM the sentencing decision of the district court. . Fed.R.Crim.P. 32(c)(3)(A) provides in relevant part: The court shall afford the defendant and the defendant’s counsel an opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it. Fed.RXrim.P. 32(c)(3)(D) provides in relevant part: If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. U.S.S.G. § 6A1.3 provides in relevant part: Resolution of Disputed Factors (Policy Statement) (a) When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor ... (b) The court shall resolve disputed sentencing factors in accordance with Rule 32(a)(1), Fed. R.Crim.P., notify the parties of its tentative findings, and provide a reasonable opportunity for the submission of oral or written objections before imposition of sentence." }, { "docid": "9926067", "title": "", "text": "(9th Cir.1991). Moreover, the district court’s remaining instructions adequately covered Del Muro’s theory of defense. The court instructed the jury on each element of the offense, including the requirement that Del Muro must have known he was not a United States citizen and deliberately stated otherwise. Under these instructions, if the jury believed Del Muro thought he was a United States citizen based on the reversal of his prior conviction and the letter from his attorney, the jury was required to find him not guilty. III. At trial, a witness identifying himself as Alberto Jose Del Muro identified Appellant as Ramiro Placencia, a man who stayed at the witness’s home for approximately three weeks in 1986 or 1987. The witness testified that Appellant left one night with the witness’s car, birth certificate, social security card, and other important papers. Prior to sentencing, Appellant Del Muro filed written objections to four convictions listed in the presentence report as convictions of Appellant, which the Government concedes were convictions of Alberto Del Muro, the witness. Each of these convictions added one point to Appellant’s criminal history score. Del Muro raised these objections again at the sentencing hearing. The court struck one of the convictions, but made no finding as to the other three. If those three convictions had been stricken, Del Muro’s criminal history category would have been V rather than VI. Del Muro challenges his sentence on the ground that the district court erred in failing to make findings on his objections to the presentence report. Federal Rule of Criminal Procedure 32(c)(3)(D) provides that when a defendant “allege[s] any factual inaccuracy in the presentence investigation report ... the court shall, as to each matter controverted, either make (i) a finding as to the allegation or (ii) ... [state that] the matter controverted will not be taken into account in sentencing.” Failure to make the necessary findings requires that the sentence be vacated and the defendant resentenced. United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.1990) (en banc). Del Muro’s sentence is VACATED, and the cause is REMANDED for further proceedings consistent" }, { "docid": "17375955", "title": "", "text": "ORDER After review of appellant’s petition for rehearing, we have decided to reconsider our decision in this case. Accordingly, the petition for rehearing is granted. Upon reconsideration, we affirm the district court’s denial of Fed.R.Crim.P. 35 relief, but remand for compliance with the technical requirements of Fed.R.Crim.P. 32. Our prior opinion, United States v. Roberson, 896 F.2d 388 (9th Cir.1990), is amended by deleting parts IV and VI and substituting the following language: IV. Roberson argues that the district court violated Rule 32 by failing either to make a finding as to controverted factual matters or to state that it would not consider certain disputed information in the presentence report. The text of former Rule 32 provides in relevant part that: (D) If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. Fed.R.Crim.P. 32(c)(3)(D). We recently declared that district courts must strictly comply with the provisions of Rule 32. United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.1990) (en banc). In light of that directive, we agree that Roberson’s counsel’s comments at sentencing constitute an allegation of a “factual inaccuracy in the presentence investigation report” that required the district court to make “a finding as to the allegation” as directed by Rule 32. Our task then turns to determining whether the district court made the required finding. The record indicates that after hearing argument by defense counsel and statements by Roberson, the district judge noted that he had “spent much more time attempting to evaluate this case than any sentencing in my" }, { "docid": "464582", "title": "", "text": "a big “mistake.” When a defendant asserts that any part of his presentence investigation report is factually incorrect, Rule 32(c)(3)(D) requires the sentencing judge to make, as to each matter controverted, “(i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing.” If the sentencing judge “fails to make the requisite finding or determination, or if the finding or determination is ambiguous, the case must be remanded for resentencing.” United States v. Garcia, 821 F.2d 1051, 1052 (5th Cir.1987). In United States v. Aleman, 832 F.2d 142, 145 (11th Cir.1987), the Eleventh Circuit held that Rule 32(c)(3)(D) does not obligate a district court to make a finding or determination unless the defendant asserts “with specificity and clarity each factual mistake” of which he complains. As the court noted, “[t]o hold otherwise would oblige the district court to guess whether a challenge is being mounted as well as what defendant wishes to contest.” Id. accord United States v. Petty, 798 F.2d 1157, 1162 (8th Cir.1986), vacated on other grounds, — U.S. -, 107 S.Ct. 1968, 95 L.Ed.2d 810 (1987). The Aleman rationale demonstrates that Aguas’s argument has no merit. It is a sensible manner in which to treat such broadcast assertions as that made by Aguas, and we adopt the rule of Aleman for our Circuit. Aguas characterized his PSI as a “big mistake” without raising any clear or specific objection of factual error; because that characterization did not suffice to trigger Rule 32(c)(3)(D), no response by the court was required. AFFIRMED." }, { "docid": "6941131", "title": "", "text": "the trial court erred in rejecting their theory of defense instructions. These proposed instructions were simply verbose recitations of appellants’ versions of the facts containing no legal theory of defense except that the jury had to find appellants guilty beyond a reasonable doubt. The Government’s burden of proof, however, was adequately covered by other instructions. Moreover, the trial court submitted several other instructions proposed by appellants, including good faith instructions on the mail fraud and tax offenses. The trial court properly instructed the jury and was not obligated to accept appellants’ theory of defense instructions. See United States v. Lisko, 747 F.2d 1234, 1237-38 (8th Cir.1984). 3. Tax Evasion Conviction Shyres argues that his tax evasion convictions, which were based on the testimony of Cotlar and Peterson, should be reversed because those witnesses were unworthy of credence. The jury passes on credibility, not this court. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Hudson, 717 F.2d 1211, 1213 (8th Cir.1983). While there may be some outer limit to this principle, this case does not approach it. We reject this argument. D. Sentencing Finally, appellants contend that the district court failed to follow the procedures required by Fed.R.Crim.P. 32(c)(3)(D). Specifically, appellants argue that the district court failed to make a finding of total victim loss, an alleged factual inaccuracy in the presentence report, or a determination that the amount of victim loss was not being taken into account at sentencing. Federal Rule of Criminal Procedure 32(c)(3)(D) requires a sentencing court to either resolve alleged factual inaccuracies in a presentence report by making a specific finding or to explicitly determine that no such finding is necessary because the controverted matter will not be taken into account at sentencing. The Rule also requires the court to append a copy.of the finding or determination to the presentence report. Compliance with the sentencing procedure mandated by Rule 32(c)(3)(D) is mandatory “because of the great reliance placed on presentence investigation reports by courts and the Bureau of Prisons and the Parole Commission.” United States" }, { "docid": "22816017", "title": "", "text": "defendant and his attorney have had the opportunity to read and discuss the report, Fed.R.Crim.P. 32(a)(1)(A). Rule 32(c)(3)(D) provides that a defendant may challenge factual inaccuracies contained in a PSI report: If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentenee investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. Defendant contends that Rule 32(c)(3)(D) standing alone allows the district court to correct his PSI report after sentence has been imposed. We disagree. Once the district court has heard objections to the report and has imposed sentence, the district court’s jurisdiction over the defendant becomes very limited. See, e.g., Fed.R.Crim.P. 35 (district court may correct illegally imposed sentence only within seven days after imposition of sentence); United States v. Johns, 638 F.2d 222, 224 (10th Cir.1981) (district court lacks jurisdiction to consider Rule 35 motion to correct sentence after defendant’s appeal is filed). Thus, postsentence challenges to a PSI report which are submitted to the district court must be based on statutes or rules which give the district court jurisdiction to consider the challenge. See generally Knopp v. Magaw, 9 F.3d 1478, 1479 (10th Cir.1993) (subject matter jurisdiction must attach before district court may exercise its power). Under the procedure set forth in Rule 32(c)(3)(D), where a defendant alleges factual inaccuracies in the PSI report, the district court must either make a finding concerning the objection or a determination that such a finding is unnecessary because “the matter controverted will not be taken into account in sentencing.” Fed.R.Crim.P. 32(c)(3)(D)(i) — (ii) (emphasis added). This language, which presumes that objections to the PSI" }, { "docid": "3804658", "title": "", "text": "given, and (3) the failure to give the requested instruction seriously impaired the defendant’s ability to present an effective defense. United States v. Walker, 720 F.2d 1527, 1541 (11th Cir.1983); United States v. Grissom, 645 F.2d 461, 464 (5th Cir.1981). Aleman asserts the court denied him a fair trial by refusing to instruct the jury that “it was not a crime to accept a gift.” An examination of the record reveals, however, that the district court did not arbitrarily refuse to give Aleman’s charge but instead insisted that it be reworded. After several dialogues with the court over the wording of the instruction, the court asked the defendant to prepare his final theory of defense instruction which the defendant agreed to do during the lunch hour. However, none was forthcoming. In any case, Aleman had the opportunity to present his defense theory in closing argument, the appellant testified the money was a gift, the government expert testified that gifts are not taxable as income, and the court substantially addressed in the jury charge Aleman’s defense theory by stating that for taxation purposes income does not include gifts or loans. Accordingly, since we believe that Aleman’s theory was substantially covered by the jury instructions given and find that any omission was not so important as to seriously impair the appellant’s ability to present a defense, we conclude that the court’s refusal to give the defendant’s requested instruction was not reversible error. United States v. Sans, 731 F.2d 1521, 1529 (11th Cir.1984). The conviction of appellant Aleman is accordingly AFFIRMED. IV. DE LA VEGA AND BETANCOURT’S APPEAL De La Vega and Betancourt challenge the validity of their sentences because of alleged inaccuracies in their presentence investigation (PSI) reports which the trial court failed to address as required by Fed. R.Crim.P. 32(c)(3)(D). In relevant part, the rule provides that [i]f the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracies in the presentence investigation report ... the court shall, as to each matter controverted, make (i) a finding as to the allegation, or" }, { "docid": "3804659", "title": "", "text": "theory by stating that for taxation purposes income does not include gifts or loans. Accordingly, since we believe that Aleman’s theory was substantially covered by the jury instructions given and find that any omission was not so important as to seriously impair the appellant’s ability to present a defense, we conclude that the court’s refusal to give the defendant’s requested instruction was not reversible error. United States v. Sans, 731 F.2d 1521, 1529 (11th Cir.1984). The conviction of appellant Aleman is accordingly AFFIRMED. IV. DE LA VEGA AND BETANCOURT’S APPEAL De La Vega and Betancourt challenge the validity of their sentences because of alleged inaccuracies in their presentence investigation (PSI) reports which the trial court failed to address as required by Fed. R.Crim.P. 32(c)(3)(D). In relevant part, the rule provides that [i]f the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracies in the presentence investigation report ... the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. ... Fed.R.Crim.P. 32(c)(3)(D). Particularly where, as in this case, the defendants have pled guilty, the rule must be strictly complied with: beyond protecting the defendant from being sentenced on inaccurate information, the PSI is deemed by prison and parole officials as an accurate record of the facts of the criminal’s history upon which the court relied at sentencing. United States v. Manotas-Mejia, 824 F.2d 360, 368 (5th Cir.1987). The record reveals that despite De La Vega’s and Betancourt’s written and oral objections to numerous substantial charges contained in their lengthy pre-sentence reports, the court failed to comply with Rule 32(c)(3)(D) by making findings as to each controverted point, or, alternatively, indicate for the record that no finding was necessary because the disputed matter would not be taken into account. Accordingly, the sentences of De La Vega and Betancourt are vacated and remanded to the district court for resentenc-ing in accordance with Rule 32(c)(3)(D). V." }, { "docid": "21721141", "title": "", "text": "favorable. Id. Because O’Neill admits that the content of the photographs is unknown, he cannot demonstrate that the photographs would have been favorable to his defense. Consequently, we conclude that their destruction is not grounds for reversal. D. Sentencing Mallard challenges the validity of his sentence because of alleged inaccuracies in a presentence investigation (PSI) report 1) that an informant told a DEA agent that Mallard had been involved in previous smuggling schemes, 2) that Mallard was well known to law enforcement officials and had been under investigation for some time, and 3) that certain Idaho and FAA law enforcement officials felt that Mallard believed he was above the law. According to Mallard, he was denied due process of law because the district court relied on this false information in sentencing him and failed to make adequate findings as to each controverted matter in the PSI report as required by Fed.R. Crim.P. 32(c)(3)(D). There is no need to address Mallard’s constitutional claim because we hold that the district court failed to comply with the requirements of Fed.R.Crim.P. 32(c)(3)(D). That rule provides that [i]f the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracies in the presentence investigation report ... the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. ... Fed.R.Crim.P. 32(c)(3)(D). We have examined the record and conclude that Mallard adequately objected to the three items in the PSI report which are claimed to be false. See, e.g., Record, vol. 3 at 266-71, vol. 7 at 14, 24-25, 32 (transcript of sentencing hearing). The district court, however, failed to make findings as to each controverted point or, alternatively, a determination that no finding was necessary because the disputed matter would not be taken into account. See Record, vol. 7 at 2-52 (transcript of sentencing hearing). On remand, the district court is directed to resentence Mallard, making specific findings in accordance with" }, { "docid": "16775345", "title": "", "text": "sentencing hearing as being a driver of truck loads of marijuana, not cocaine. Appellant did not object to this characterization of his role in the illegal scheme. Furthermore, prior to sentencing, appellant was admonished by the sentencing judge concerning the consequences of trafficking in marijuana. Finally, appellant was not preju diced in his attempt to establish parole because a letter was sent to the Parole Commission explaining that appellant was not involved in the importation and distribution of cocaine. Thus, appellant was not deprived of his right to effective assistance of counsel. Accordingly, for the reasons set forth in this opinion, we AFFIRM the district court’s denial of appellant’s motion for findings of fact and modification of sentence. . Subsequent to his incarceration, appellant was ordered by the Parole Commission to continue his sentence to expiration. Prior to the Parole Commission’s determination, however, a letter was sent to the Commission from Elue Ellis, a probation officer. The letter corrected the error in the PSI and stated that \"William N. Stevens had no direct connection with the transportation of cocaine. William N. Stevens’ role was to transport marijuana.” Joint Appendix at 92. . Fed.R.Crim.P. 32(c)(3)(D) provides: (D) If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. . In United States v. Aleman, 832 F.2d 142, 143-44 (11th Cir.1987), the court noted that at sentencing, “[i]f the defense does not contest the PSI, the procedural mechanisms set out in Rule 32(c)(3)(D) never come into play.” . In Mays, the Third Circuit found that the sentencing court had determined" }, { "docid": "3804657", "title": "", "text": "of cross-examination and improper prosecutorial remarks, Aleman cites only two cases and offers less than three full pages of argument to bolster these allegations. Aleman then asserts that the trial court reversibly erred in failing to instruct the jury on his defense theory. 2. Discussion After carefully reviewing the record portions corresponding to Aleman’s twenty-five item list, we conclude that the court’s evidentiary rulings were correct, and the government’s comments were infrequent and innocuous. The evidence against Aleman was extremely strong, and, beyond any doubt, Aleman received a fair trial. Aleman’s argument concerning the court’s refusal to instruct the jury on his defense theory is specious. Quite simply, Aleman denies ever having guarded cocaine and explains his receipt of the $100,-000, which the evidence overwhelming proved to be either possessed or expended by him, as merely a non-taxable gift made to him by his corrupt police friends. The refusal to give a requested instruction warrants reversal only if (l).the proffered instruction was substantially correct, (2) the requested instruction was not addressed in the charge actually given, and (3) the failure to give the requested instruction seriously impaired the defendant’s ability to present an effective defense. United States v. Walker, 720 F.2d 1527, 1541 (11th Cir.1983); United States v. Grissom, 645 F.2d 461, 464 (5th Cir.1981). Aleman asserts the court denied him a fair trial by refusing to instruct the jury that “it was not a crime to accept a gift.” An examination of the record reveals, however, that the district court did not arbitrarily refuse to give Aleman’s charge but instead insisted that it be reworded. After several dialogues with the court over the wording of the instruction, the court asked the defendant to prepare his final theory of defense instruction which the defendant agreed to do during the lunch hour. However, none was forthcoming. In any case, Aleman had the opportunity to present his defense theory in closing argument, the appellant testified the money was a gift, the government expert testified that gifts are not taxable as income, and the court substantially addressed in the jury charge Aleman’s defense" }, { "docid": "3961475", "title": "", "text": "making his sentencing determination. Nevertheless, this court found that the judge had not totally complied with the rule because he had not appended to the PSI a written record of his determination. We held that the appropriate remedy for that violation was a “remand with directions that the trial court cause its determination that it did not consider the challenged allegations in imposing sentence to be appended, in a written order, to the pre-sentence investigation report.” Id. at 1394. Accordingly, we REVERSE the district court’s decision that petitioner does not have a valid Section 2255 claim, and we REMAND to the district court for it to prepare a written record of its nonreliance on the disputed matters in the PSI and to send the record to the appropriate authorities for attachment to the PSI. REVERSED AND REMANDED. . At the time of sentencing the district court stated to defense counsel: \"[T]he matters that you’ve alluded to in that particular motion and memorandum are not considered by the Court in reaching its sentence in this case.” . Rule 32(c)(3)(D) provides: If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. Fed.R.Crim.P. 32(c)(3)(D) (emphasis added). .A number of courts have held that violations of Rule 32(c)(3)(D) may be raised pursuant to the pre-1987 version of Rule 35 of the Federal Rules of Criminal Procedure, which provided for challenges to sentences \"imposed in an illegal manner.” See, e.g., United States v. Katzin, 824 F.2d 234, 237-38 (3d Cir.1987); United States v. Santamaria, 788 F.2d 824, 828-29" } ]

[ { "docid": "6041258", "title": "", "text": "of evidence to support the nonmoving party’s case.” Id. 106 S.Ct. at 2554. Indeed, once a motion for summary judgment is properly made, the burden then shifts to the non-moving party, which “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, supra, 106 S.Ct. at 2511. Because the District Court must determine “whether there is a need for trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party,” id. — the nonmoving party must produce, at the summary judgment stage, “sufficient evidence favoring the nonmov-ing party for a jury to return a verdict for that party.... If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. While the Court “must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought,” Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975) (citations omitted), the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted). Ultimately, “[i]n considering the motion, the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986)), cert. denied, — U.S. 762, 107 S.Ct. 1570, 94 L.Ed.2d - (1987); see also Eastway Contraction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985). FACTUAL BACKGROUND The pleadings, depositions, affidavits, and other materials filed by the parties, construed in a light most favorable to the plaintiff, establish the following relevant facts: Plaintiff Richard M. Rosenthal is" } ]

[ { "docid": "21394733", "title": "", "text": "Union Credit Info. Co., 970 F.2d 1110, 1112 (2d Cir.1992) (quotation omitted). To defeat a motion for summary judgment, the non-moving party must do “more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Instead, the non-moving party must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. If the adverse party does not respond to the motion for summary judgement, “summary judgement, if appropriate, shall be entered against the adverse party.” Fed.R.Civ.P. 56(e). In considering a motion for summary judgment, a court is not to resolve contested issues of fact, but rather, it is to determine, the existence of any disputed issues of material fact. Knight v. United States Fire Ins. Co., 804 F.2d 9,11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). The existence of a genuine issue of material fact depends on both the genuineness and the materiality of the issues' raised by the motion. See Scottish Air Int’l, Inc v. British Caledonian Group, 867 F.Supp. 262, 266 (S.D.N.Y.1994), aff'd, 81 F.3d 1224 (2d Cir.1996). Indeed, “the mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment.” Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985) (per curiam). To evaluate a fact’s materiality, it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). While “disputes over facts that might affect the outcome of a suit under the governing law will properly preclude the entry of summary judgment^] [¶] actual disputes that are irrelevant or unnecessary will not be counted.” Id. (citations omitted); see Knight, 804 F.2d at 11-12. According to the Supreme Court, “all that is" }, { "docid": "2452425", "title": "", "text": "district court of the basis for its motion” and identifying which materials it believes “demonstrates the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Trebor Sportswear Co. v. Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir.1989). “[T]he burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmov-ing party’s case.” Celotex, supra, 477 U.S. at 325, 106 S.Ct. at 2554. Indeed, once a motion for summary judgment is properly made, the burden then shifts to the nonmoving party, which “must set forth facts showing that there is a genuine issue for trial.” Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511. The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted). B) Governing Law The parties agree that New York law applies to this action. Plaintiff’s Memorandum of Law at 6, Defendant’s Memorandum of Law at 1 n. 1. The reinsurance contracts were negotiated, issued, and made in New York by a New York reinsurance company. Additionally, New York would be the place of performance under the contracts. These are sufficient contacts to justify the application of New York law under the New York choice of law doctrine. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Berman v. Hertz Corp., 127 A.D.2d 809, 511 N.Y.S.2d 938 (2d Dep’t 1987); Colonial Penn Insurance Co. v. Minkoff, 40 A.D.2d 819, 338 N.Y.S.2d 444 (1972), aff'd, 33 N.Y.2d 542, 347 N.Y.S.2d 437, 301 N.E.2d 424 (1973). C) Notice to Reinsurers New York law strongly supports prompt notice clauses in primary insurance contracts. Travelers Ins. Co. v. Buffalo Reinsurance Co., 735 F.Supp. 492, 498 (S.D.N.Y.1990) (citing, inter alia, Security Mutual Ins. Co." }, { "docid": "6732299", "title": "", "text": "107 L.Ed.2d 31 (1989). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and identifying which materials “it believes demonstrate the absence of a genuine issue of material fact.” Celotex, supra, 477 U.S. at 323, 106 S.Ct. at 2553; see also Trebor Sportswear Co. v. Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir.1989). Once a motion for summary judgment is properly made, however, the burden then shifts to the non-moving party, which “must set forth facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Conclusory allegations are not sufficient to create a genuine issue. “[T]o avoid summary judgment, a party ‘must do more than simply show that there is some metaphysical doubt as to the material facts....'\"Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991) (quoting Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986)). “The non-movant cannot ‘escape judgment merely by vaguely asserting the existence of some unspecified disputed material facts,’ or defeat the motion through ‘mere speculation or conjecture.’ ” Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (quoting Borthwick v. First Georgetown Secur., Inc., 892 F.2d 178, 181 (2d Cir.1989) and Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987)). Liability for Trademark Infringement and Unfair Competition Plaintiffs have moved for summary judgment with respect to defendants’ liability for trademark infringement under section 32 of the Lanham Act, 15 U.S.C. § 1114, and for unfair competition under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and under common law. The elements required to succeed on these claims are substantially the same and are examined together. See Lois Sportswear U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867 (2d Cir.1986); Radio Today, Inc. v. Westwood One, Inc., 684 F.Supp. 68, 72 (S.D.N.Y.1988); Corning Glass Works v. Jeannette Glass Co., 308 F.Supp. 1321, 1327-28 (S.D.N.Y.), aff'd, 432 F.2d 784" }, { "docid": "15047257", "title": "", "text": "by demonstrating to the Court that there is an absence of evidence to support the non-moving party’s case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53. To defeat a summary judgment motion, the non-moving party must do “more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Instead, the non-moving party must “set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (At summary judgment, “[t]he time has come ... ‘to put up or shut up.’ ”) (citations omitted), cert. denied, 540 U.S. 811, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003). In evaluating the record to determine whether there is a genuine issue as to any material fact, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513. The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987). “If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper.” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37. In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd." }, { "docid": "4069538", "title": "", "text": "at the summary judgment stage, “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.... If the evidence is merely colorable, or is not significantly probative, summary judgement may be granted.” Id. While the Court “must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought,” Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975) (citations omitted), the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted). Ultimately, “[i]n considering the motion, the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986)), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987); see also Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985). DISCUSSION Interpretation of the Offer to Sell The dispute in this case revolves around the construction of the Offer to Sell entered into by Vangar Realty and the Postal Service. The question of interpretation is one of law to be answered by the Court and summary judgment is appropriate where the language of the contract is unambiguous, and reasonable persons could not differ as to its meaning. See Rothenberg v. Lincoln Farm Camp, Inc., 755 F.2d 1017, 1019 (2d Cir.1985); West, Weir & Bartel, Inc. v. Mary Carter Paint Co., 25 N.Y.2d 535, 540, 307 N.Y.S.2d 449, 452, 255 N.E.2d 709, 712 (1969); 3 A. Corbin, Corbin on Contracts § 554, at 222 (1960). The determination of whether a contract or contract term is ambiguous is a threshold question of law for the Court. See" }, { "docid": "11321194", "title": "", "text": "party has the initial responsibility of informing the court of the basis for its motion, and identifying “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which the movant believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)); Adickes v. S.H. Kress & Co., 398 U.S. 144, 153, 90 S.Ct. 1598, 1606, 26 L.Ed.2d 142 (1970). However, once a movant meets that burden, and establishes a prima facie case for summary judgment, the opponent of summary judgment must adduce enough evidence to support a jury verdict in his favor. Liberty Lobby, 477 U.S. at 249, 106 S.Ct. at 2510 (citing First Nat’l Bank of Ariz. v. Cities Svc. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968)); see Trebor Sportswear Co. v. The Limited Stores, Inc., 865 F.2d 506 (2d Cir.1989); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727 (2d ed. 1983). In determining whether a genuine issue of material fact has been raised, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam), cited in Donahue v. Windsor Locks Bd. of Fire Comm’rs., 834 F.2d 54, 57 (2d Cir.1987). Therefore, not only must there be no genuine issue as to the evidentiary facts, but there must also be no controversy regarding the inferences to be drawn from them. Donahue, 834 F.2d at 57, citing Schwabenbauer v. Board of Educ., 667 F.2d 305, 313 (2d Cir.1981). However, when there is nothing more than a metaphysical doubt as to the material facts, summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). As with any Title VII case, plaintiff must prove a prima facie case of discrimination by a preponderance of the evidence. If" }, { "docid": "6732298", "title": "", "text": "in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.’ ” United States v. All Right, Title & Interest in Real Property, etc., 901 F.2d 288, 290 (2d Cir.1990) (quoting Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391, 102 L.Ed.2d 380 (1988)). The substantive law governing the case will identify the facts that are material, and “[ojnly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, supra, 477 U.S. at 248, 106 S.Ct. at 2510. “[T]he judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there does indeed exist a genuine issue for trial.” Id., at 249, 106 S.Ct. at 2511; see also R. C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102, 107 (2d Cir.), cert. denied, — U.S. —, 110 S.Ct. 64, 107 L.Ed.2d 31 (1989). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and identifying which materials “it believes demonstrate the absence of a genuine issue of material fact.” Celotex, supra, 477 U.S. at 323, 106 S.Ct. at 2553; see also Trebor Sportswear Co. v. Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir.1989). Once a motion for summary judgment is properly made, however, the burden then shifts to the non-moving party, which “must set forth facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Conclusory allegations are not sufficient to create a genuine issue. “[T]o avoid summary judgment, a party ‘must do more than simply show that there is some metaphysical doubt as to the material facts....'\"Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991) (quoting Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986)). “The non-movant cannot ‘escape judgment merely by vaguely asserting the existence of some unspecified" }, { "docid": "14791825", "title": "", "text": "New York, 762 F.2d 243, 249 (2d Cir.1985). If a material factual issue may only be determined by a trier of fact, namely, if the material issue could reasonably be resolved in favor of either party, summary judgment is not proper. The non-moving party must, however, “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). See also, King Service Inc. v. Gulf Oil Corp., 834 F.2d 290, 294-95 (2d Cir.1987); Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 865 F.2d 506, 510 (2d Cir. 1989); Rosenthal v. Kingsley, 674 F.Supp. 1113, 1115 (S.D.N.Y.1987). Additionally, disagreement as to “ultimate facts or conclusions” will not make summary judgment by the Court improper, where the material facts pertinent to the movant’s motion are not legitimately disputed. Burroughs Wellcome Co. v. Commercial Union Insurance Co., 642 F.Supp. 1020, 1022 (S.D. N.Y.1986). 1. Federal Securities Law Claims. A. Section 17(a). This Court has now taken the position, in accord with recent and ever-increasing case authority, that there is no private right of action under Section 17(a) of the ’33 Act. See, e.g., Yoder v. Orthomolecular Nutrition Institute, Inc., 751 F.2d 555, 559 n. 3 (2d Cir.1985) (Friendly, J.); Dubin v. E.F. Hutton Group, Inc., 695 F.Supp. 138 (S.D.N.Y.1988). See also, Eickhorst v. American Completion and Development Corporation, 706 F.Supp. 1087 (S.D.N.Y.1989) (“[T]he Court is aware of no recent voice substantively arguing the correctness of the conclusion that section 17(a) carries with it an implied private right of action.”) Consequently, plaintiffs’ claims against the defendants based upon § 17(a) are hereby dismissed. B. Section 10(b). The moving defendants raise two related, analytically intertwined challenges to the Section 10(b) claims. The factual basis of the Complaint’s Section 10(b) claims involves the December 1980 sale of the partnership units to the plaintiffs. The moving defendants assert that their allegedly fraudulent activities largely post-date that Offering, and in any event; 1) did not occur “in connection with” the sale of those" }, { "docid": "8166788", "title": "", "text": "burden of coming forward with “specific facts showing that there is a genuine issue for trial,” Fed. R. Civ.P. 56(e), by “a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. at 2552. The Court “must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion.” Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir.1987); Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir.1985); see also Adickes v. S.H. Kress & Co., 398 U.S. at 158-59, 90 S.Ct. at 1609. But the Court must inquire whether “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986), and grant summary judgment where the nonmovarit’s evidence is merely colorable, conclusory, speculative or not significantly probative. Id. at 249-50, 106 S.Ct. at 2510-11; see Knight v. United States Fire Ins. Co., 804 F.2d 9, 12-15 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L.Ed.2d 762 (1987); Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1295, 94 L.Ed.2d 151 (1987). The nonmovant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). To determine whether the moving party has met his or her burden, the Court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, “it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.” Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. A dispute over irrelevant or unnecessary facts will not preclude summary" }, { "docid": "4099208", "title": "", "text": "moving party. See Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988). If there is any evidence in the record regarding the issues on which summary judgment is sought from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Knowles v. New York City Dept. of Corrections, 904 F.Supp. 217, 220 (S.D.N.Y.1995). A party seeking to defeat a summary judgment motion cannot “rely on mere speculation or conjecture as to the true nature of facts to overcome the motion.” Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir.1995) (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986)). Rather, the re sponding party “must show the existence of a disputed material fact in light of the substantive law.” Peer Int’l Corp. v. Luna Records, Inc., 887 F.Supp. 560, 564 (S.D.N.Y.1995). In the absence of any disputed material fact, summary judgment is appropriate. Materiality is defined by the governing substantive law. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[T]he mere existence of factual issues— where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment.” Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985). For a dispute to be genuine, there must be more than “metaphysical doubt.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. “If the evidence is merely colorable, ... or is not significantly probative, ... summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Since this standard mirrors that for a directed verdict, see id. at 250, 106 S.Ct. 2505, the ultimate question on this motion is whether a reasonable jury" }, { "docid": "14791824", "title": "", "text": "See generally, Schwarzer, Summary Judgment under the Federal Rules: Defining Genuine Issue of Material Fact, 99 F.R.D. 465, 487-88 (1984). The burden is discharged by “ ‘showing’ — that is, pointing out to the District Court — that there is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. at 2554. When this initial showing is made, it becomes the non-moving party’s burden “to set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250, 106 S.Ct. at 2511; King Service Inc., 834 F.2d at 295. In ascertaining whether there are material issues to be tried, the Court must “resolv[e] ambiguities and draw[ ] reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986)), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987); see also Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985). If a material factual issue may only be determined by a trier of fact, namely, if the material issue could reasonably be resolved in favor of either party, summary judgment is not proper. The non-moving party must, however, “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). See also, King Service Inc. v. Gulf Oil Corp., 834 F.2d 290, 294-95 (2d Cir.1987); Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 865 F.2d 506, 510 (2d Cir. 1989); Rosenthal v. Kingsley, 674 F.Supp. 1113, 1115 (S.D.N.Y.1987). Additionally, disagreement as to “ultimate facts or conclusions” will not make summary judgment by the Court improper, where the material facts pertinent to the movant’s motion are not legitimately disputed. Burroughs Wellcome Co. v. Commercial Union Insurance Co., 642 F.Supp. 1020, 1022 (S.D. N.Y.1986). 1. Federal Securities Law Claims. A. Section 17(a). This Court" }, { "docid": "3369520", "title": "", "text": "834 F.2d at 295. The plain language of Rule 56(c) mandates the entry of summary judgment where a party fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation there can be “ ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, su pra, 477 U.S. at 323, 106 S.Ct. at 2552. The non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). See also, King Service Inc., supra, 834 F.2d at 294-295; Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 865 F.2d .506, 511 (2d Cir,1989); Rosenthal v. Kingsley, 674 F.Supp. 1113, 1115 (S.D.N.Y.1987). Thus, Rule 56(e) requires that when one party moves for summary judgment and supports the motion with affidavits and exhibits, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e) (emphasis added). This requirement is especially pertinent where, as here, a defendant has moved for summary judgment and the evidence before the Court calls into doubt one or more elements of the plaintiff’s prima facie case. Cumberland Oil Corp. v. Thropp, 791 F.2d 1037, 1043 (2d Cir.1986); cert. denied, 479 U.S. 950, 107 S.Ct. 436, 93 L.Ed.2d 385 (1986). In order to survive a summary judgment motion, plaintiff must present supporting facts and arguments showing some legal basis for liability on the part of the defendant; it is not enough simply to put forth conclusory allegations of wrongdoing. Greater Buffalo Press, Inc. v. Federal Reserve Bank of New York, 866 F.2d 38, 42" }, { "docid": "3072385", "title": "", "text": "A. Legal Standards 1. Summary Judgment Standard The standards governing motions for summary judgment are well-settled. Summary judgment may be granted when “there is no genuine issue as to any material fact and .,. the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Accordingly, the Court’s task 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). Summary judgment is inappropriate -if, resolving all ambiguities and drawing all inferences against the moving party, id. 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)), there exists a dispute about a material fact “such that a reasonable jury could return a verdict for the ‘nonmoving party.” Anderson, 477 U.S. at 248. Once the\" moving party meets its initial burden of production, the burden shifts to the nonmoving party to demonstrate that there exist genuine issues of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To defeat a- motion for summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. 475 U.S. at 586. The nonmoving party may not rest upon mere “conclusory allegations or denials,” but must set forth “concrete particulars” showing that a trial is needed. -. National Union Fire Ins. Co. v. Deloach, 708 F.Supp. 1371, 1379 (S.D.N.Y. 1989) (quoting R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984)). There is no issue for trial unless there exists sufficient evidence in, the record favoring the party opposing summary judgment to support a jury verdict in that party’s favor. Anderson, 477 U.S. at 249. As the Supreme Court stated in Anderson," }, { "docid": "8166789", "title": "", "text": "not significantly probative. Id. at 249-50, 106 S.Ct. at 2510-11; see Knight v. United States Fire Ins. Co., 804 F.2d 9, 12-15 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L.Ed.2d 762 (1987); Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1295, 94 L.Ed.2d 151 (1987). The nonmovant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). To determine whether the moving party has met his or her burden, the Court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, “it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.” Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of summary judgment. See, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12. Once the nonmoving party has successfully met the burden of establishing the existence of a genuine dispute as to an issue of material fact, summary judgment must be denied unless the moving party comes forward with additional evidence sufficient to establish his or her burden under Rule 56. Celotex Corp. v. Catrett, 477 U.S. at 330 & n. 2, 106 S.Ct. at 2556 & n. 2 (Brennan, J., dissenting). In sum, if the Court determines that “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356 (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592-93," }, { "docid": "3369519", "title": "", "text": "summary judgment always bears the initial burden of informing the Court of the basis for its motion. Celotex Corp. v. Catrett, supra, 477 U.S. at 323, 106 S.Ct. at 2553. “The burden on the moving party will be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. at 2554. However, there is no requirement that the movant must support its motion with affidavits or other similar material negating the opponent's claim. Id. at 323, 106 S.Ct. at 2553. Where the non-moving party “will bear the burden of proof at trial on a dispositive issue,” a summary judgment motion “may properly be made in reliance solely” on the pleading, depositions, interrogatory answers and admissions. When this initial showing is made, it becomes the non-moving party’s burden to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511; King Service Inc., supra, 834 F.2d at 295. The plain language of Rule 56(c) mandates the entry of summary judgment where a party fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation there can be “ ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, su pra, 477 U.S. at 323, 106 S.Ct. at 2552. The non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). See also, King Service Inc., supra, 834 F.2d at 294-295; Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 865 F.2d .506, 511 (2d Cir,1989); Rosenthal v. Kingsley, 674 F.Supp. 1113, 1115 (S.D.N.Y.1987). Thus," }, { "docid": "1173247", "title": "", "text": "69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984) (quoted in H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 250-51, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989)). C. Motions for Summary Judgment Standards Applicable to a Motion for Summary Judgment A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir.1991). The moving party bears the burden of proving that no genuine issue of material fact exists. Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988); Pittston Warehouse Corp. v. American Motorists Ins. Co., 715 F.Supp. 1221, 1224 (S.D.N.Y.1989), aff'd, 954 F.2d 62 (2d Cir.1992). The Second Circuit has repeatedly noted that “as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party.” Brady, 863 F.2d at 210; see also Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir.1992); Burtnieks v. City of New York, 716 F.2d 982, 983-84 (2d Cir.1983); Swan Brewery Co. v. United States Trust Co., 832 F.Supp. 714, 717 (S.D.N.Y.1993). The remedy of summary judgment is viewed “as an integral part of the Federal rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (citations omitted). Once the moving party has met its burden of coming forward with evidence to show that no material fact exists for trial, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). D. Statutory Framework Local Laws Plaintiffs" }, { "docid": "14791826", "title": "", "text": "has now taken the position, in accord with recent and ever-increasing case authority, that there is no private right of action under Section 17(a) of the ’33 Act. See, e.g., Yoder v. Orthomolecular Nutrition Institute, Inc., 751 F.2d 555, 559 n. 3 (2d Cir.1985) (Friendly, J.); Dubin v. E.F. Hutton Group, Inc., 695 F.Supp. 138 (S.D.N.Y.1988). See also, Eickhorst v. American Completion and Development Corporation, 706 F.Supp. 1087 (S.D.N.Y.1989) (“[T]he Court is aware of no recent voice substantively arguing the correctness of the conclusion that section 17(a) carries with it an implied private right of action.”) Consequently, plaintiffs’ claims against the defendants based upon § 17(a) are hereby dismissed. B. Section 10(b). The moving defendants raise two related, analytically intertwined challenges to the Section 10(b) claims. The factual basis of the Complaint’s Section 10(b) claims involves the December 1980 sale of the partnership units to the plaintiffs. The moving defendants assert that their allegedly fraudulent activities largely post-date that Offering, and in any event; 1) did not occur “in connection with” the sale of those securities, and 2) had no causal relationship to the plaintiffs’ losses. Even giving the Complaint its broadest possible import, and resolving any doubts as to the existence of material factual issues in favor of the plaintiffs in accord with the standards set out above, the Court must agree that no Section 10(b) claim can be stated against the moving defendants. The alleged sham transactions between the moving defendants and SGS cannot, themselves, support a Section 10(b) claim. All of those transactions occurred after the December 1980 purchases of the partnership units. Complaint 1139. Such post-purchase activities have consistently and explicitly been rejected as bases for Section 10(b) liability. See, e.g., Rothstein v. Seidman & Seidman, 410 F.Supp. 244 (S.D.N.Y.1976); Halperin v. Edwards & Hanly, 430 F.Supp. 121, 123-25 (E.D.N.Y. 1977); Mendelsohn v. Capital Underwriters, Inc., 490 F.Supp. 1069, 1088 (N.D.Cal. 1979). The closer question involves those portions of the Complaint which charge that, “prior to the date Plaintiffs purchased their Units,” the moving defendants had meetings and an “arrangement” with SGS to undertake the fraudulent" }, { "docid": "16000219", "title": "", "text": "repeatedly noted that “as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party.” Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting)); see Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir.1995); Burrell v. City Univ., 894 F.Supp. 750, 757 (S.D.N.Y.1995). If, when viewing the evidence produced in the light most favorable to the non-movant, there is no genuine issue of material fact, then the entry of summary judgment is appropriate. See Burrell, 894 F.Supp. at 758 (citing Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir.1991)). Materiality is defined by the governing substantive law. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., All U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[T]he mere existence of factual issues— where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment.” Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985). For a dispute to be genuine, there must be more than “metaphysical doubt.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Additional considerations factor into a summary judgment motion in an employment discrimination action. See Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir.1994); see also Montana v. First Fed. Sav. & Loan Ass’n, 869 F.2d 100, 103 (2d Cir.1989);" }, { "docid": "5363654", "title": "", "text": "to consider overruling Kirshner v. United States, 603 F.2d 234 (2d Cir.1978) (there is a private right of action under § 17(a)), cert. denied, 442 U.S. 909, 99 S.Ct. 2821, 61 L.Ed.2d 274 (1979), to be consistent with the holdings of several other circuit courts. See Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir.1990). However, following Judge Friendly’s pointed suggestion that there be a reexamination of this question, Yoder v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 559 n. 3 (2d Cir.1985), this Court has repeatedly found there to be no private right of action under § 17(a). See, e.g., O’Brien v. Nat’l Property Analysts Partners, 719 F.Supp. 222, 231 (S.D.N.Y.1989); Huang v. Sentinel Gov’t Securities, 709 F.Supp. 1290, 1294-95 (S.D.N.Y.1989); Goldman v. McMahan, Brafman, Morgan & Co., 706 F.Supp. 256, 258 (S.D.N.Y.1989); Dubin v. E.F. Hutton Group, Inc., 695 F.Supp. 138 (S.D.N.Y.1988). See also, Eickhorst v. American Completion and Development Corp., 706 F.Supp. 1087, 1098 (S.D.N.Y.1989) (“[T]he Court is aware of no recent voice substantively arguing the correctness of the conclusion that section 17(a) carries with it an implied private right of action.”). The Court finds nothing in plaintiffs’ argument to require a change of heart on the justiciability of claims under § 17(a). Accordingly, plaintiffs’ second claim for relief under § 17(a) in their amended complaint is dismissed with prejudice. B) CNA’s Motion For Summary Judgment Only plaintiffs Joe K. George, Joe David House, M. Stephen Brandon, Thomas J. Welsh, George Sennett and Edith Sennett purchased their investment in the partnerships through CNA. None of the other plaintiffs had any contact with CNA in connection with the partnerships. CNA has moved thus for summary judgment pursuant to Fed.R.Civ.P. 56 against all plaintiffs except those who purchased their interests in the partnership from CNA. Plaintiffs have indicated that they do not oppose CNA’s motion for summary judgment against these plaintiffs. Plaintiffs’ Memorandum of Law at 1. Accordingly, defendant CNA’s motion for summary judgment on all claims against all plaintiffs except Joe K. George, Joe David House, M. Stephen Brandon, Thomas J. Welsh, George Sennett and Edith Sennett," }, { "docid": "2525370", "title": "", "text": "party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir.1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.1983). In deciding whether there is a disputed issue of material fact the court must view all doubt in favor of the non-moving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983), cert. denied, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir.1972). The threshold inquiry is whether there are “any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Recent Supreme Court decisions mandate that “a motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party’s burden of proof at trial, could be the basis for a jury finding in that party’s favor.” J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, “its opponent must do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Thus, if the non-movant’s evidence is merely “colorable” or is “not significantly probative,” the court may grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. The court will address first whether the moving defendants are persons within the meaning of Section 1983, as that issue goes to whether plaintiffs have" } ]

[ { "docid": "14934104", "title": "", "text": "are the elements of a loss of consortium claim alleged — that is, there are no allegations of loss of society, service, and support. Therefore, the court finds that although summary judgment is appropriate with regard to the claims currently asserted on behalf of Jaclyn Garza, plaintiffs should be allowed to amend their complaint to assert a loss of consortium claim alleging the correct legal components. Accordingly, the motions by National American Insurance Company and M & M Transportation, Inc. for summary judgment as to the claims of Jaclyn Garza are GRANTED. Further, plaintiffs are hereby granted ten days within which to amend their petition to assert a loss of consortium claim on behalf of Jaclyn Garza. . Defendants filed a brief addressing the jurisdictional issue. Plaintiffs did not. . See Steinman, Section 1367 — Another Party Heard From, 41 Emory L.J. 85, 94-97 (1992). . The court notes that subsection (c) of § 1367 allows a district court to decline the exercise of supplemental jurisdiction under certain circumstances. Because the circumstances set forth in subsection (c) are inapplicable to this action, they need not be discussed. . 383 U.S. 715, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). . 437 U.S. 365, 98 S.Ct. 2396, 2401 at note 10, 57 L.Ed.2d 274 (1978). . There is debate as to whether § 1367 has the effect of overruling the Zahn requirement that each plaintiff independently satisfy the amount in controversy requirement. Although the court found no appellate court cases dealing with the issue, there are district courts which have concluded that § 1367 does not have the effect of overruling Zahn. For example, see Griffin v. Dana Point Condominium Ass'n., 768 F.Supp. 1299 (N.D.Ill.1991) and Averdick v. Republic Financial Services, Inc., 803 F.Supp. 37 (E.D.Ky.1992). On the other hand, Herbert B. Newberg, author of Newberg on Class Actions (2d ed. Supp.1992), is of the opinion that § 1367 has repealed the requirements of Zahn, as is Professor Richard D. Freer (see Freer, [Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute], 40 Emory LJ. 445 (1991))." } ]

[ { "docid": "22859273", "title": "", "text": "(1991) (academics who assisted in drafting section 1367 assert that legislative history indicates no intent to overrule Zahn); Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emoiy L.J. 445, 485-86 (1991) (expressing regret that intent not to overrule Zahn is \"buried in the legislative history”); Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction'? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n. 90 (1991) (admitting that the statute could have been better drafted); Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991) (asserting that statutory language overrules Zahn and doubting that legislative history can save it); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important but Controversial Supplement to Federal Jurisdiction, 41 Emory L.J. 31, 56-58 (1992) (indicating that, notwithstanding the legislative history, the language of section 1367 tracks closely the language suggested by the Federal Courts Study Committee, which, according to the author, expressed a desire to overrule Zahn); Joan Steinman, Section 1367 — Another Party Heard From, 41 Emory L.J. 85, 102-04 (1992) (similar); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute — A Constitutional and Statutory Analysis, 24 Ariz.St.L.J. 849, 973 (1992) (section 1367 should not be interpreted as overruling Zahn ). To date, neither the Supreme Court nor any United States Court of Appeals has decided this issue. Several district courts, however, have refused to hold that section 1367 overruled Zahn in a class action context. Mayo v. Key Fin. Servs., Inc., 812 F.Supp. 277, 278 (D.Mass.1993); Averdick v. Republic Fin. Servs., Inc., 803 F.Supp. 37, 45-46 (E.D.Ky.1992); Benfield v. Mocatta Metals Corp., No. 91 Civ. 8255 (LJF), 1993 WL 148978, 1993 U.S.Dist. LEXIS 5856 (S.D.N.Y. May 5, 1993); Bradbury v. Robertson-Ceco Corp., No. 92 C 3408, 1992 WL 178648, 1992 U.S.Dist. LEXIS 10888 (N.D.Ill. July 22, 1992). Because no plaintiff alleges more than $50,000 in compensatory damages and punitive damages may not be recovered against a trustee under Pennsylvania" }, { "docid": "22231170", "title": "", "text": "the conflict among authorities on our question, but declined to resolve it. See 994 F.2d 1039, 1045-46 n. 9 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 440, 126 L.Ed.2d 373 (1993). . Compare Henkel v. ITT Bowest Corp., 872 F.Supp. 872, 877 (D.Kan.1994) (holding that § 1367 did not overrule Zafen); Aspe Arquitectos, S.A. de C.V. v. Jamieson, 869 F.Supp. 593, 595 (N.D.Ill.1994) (same); Dirosa v. Grass, No. 94-2551, 1994 WL 583276, at *2, 1994 U.S.Dist. LEXIS 15100, at *7 (E.D.La. Oct. 19, 1994) (same); Kaplan v. Mentor Corp., No. 94-6249, 1994 U.S.Dist. LEXIS 15779, at *3 (N.D.Ill. Oct. 17, 1994) (same), supplemented, 1994 U.S.Dist. LEXIS 15410 (E.D.Ill. Oct. 24, 1994); Benninghoff v. Tolson, No. 94-2903, 1994 WL 519745, at *4, 1994 U.S.Dist. LEXIS 13428, at *11 (E.D.Pa. Sept. 22, 1994) (same); Clement v. Occidental Chem. Corp., Nos. 94—1315, 94-1316, 94-1317, 1994 WL 479155, at *4, 1994 U.S.Dist.LEXIS 12387, at *19 (E.D.La. Aug. 30, 1994) (same); Potash, 866 F.Supp. at 414 (same); North Am. Mechanical Servs. Corp. v. Hubert, 859 F.Supp. 1186, 1188-89 (C.D.Ill.1994) (same); Duet v. Lawes, No. 94-0739, 1994 WL 151095, at *2, 1994 U.S.Dist. LEXIS 4755, at *4-5 (E.D.La. Apr. 7, 1994) (same); Riverside Transp., Inc. v. Bellsouth Telecommunications, Inc., 847 F.Supp. 453, 456 (M.D.La.1994) (same); Fink v. Heath, No. 91-2982, 1991 WL 127664, at *3, 1991 U.S.Dist. LEXIS 9182, at *7-8 (N.D.Ill. July 8, 1991) (same); and Griffin v. Dana Point Condominium Ass’n, 768 F.Supp. 1299, 1302 (N.D.Ill.1991) (same) with Lindsay v. Kvortek, 865 F.Supp. 264, 276 (W.D.Pa.1994) (determining that § 1367 supersedes Zahn; case did not involve class action); Patterson Enters., Inc. v. Bridgestone/Firestone, Inc., 812 F.Supp. 1152, 1154 (D.Kan.1993) (same); and Garza v. National Am. Ins. Co., 807 F.Supp. 1256, 1258 & n. 6 (M.D.La.1992) (same). . The impressive array of Professors Burbank, Mengler, and Rowe has observed that ‘‘[i]t would have been better had the statute dealt explicitly with this problem, and the legislative history was an attempt to correct the oversight.” Rowe et al., supra, 40 Emory L.J. at 960 n. 90. They have noted that the supplemental jurisdiction statute" }, { "docid": "21045013", "title": "", "text": "Federal Practice, ¶ 23.50 (2d ed.l985)(stating “[i]n the interim between the commencement of the suit as a class action and the court’s determination as to whether it may be so maintained it should be treated as a class suit’’); City of Inglewood v. City of Los Angeles, 451 F.2d 948, 951 (9th Cir.1971); Fountain v. Black, 876 F.Supp. 1294 (S.D.Ga.1994). . Congress has raised the jurisdictional amount to $75,000, effective in January 1997, but that has no effect on these cases. . See, e.g., North American Mechanical Services Corp. v. Hubert, 859 F.Supp. 1186 (C.D.Ill.1994); Riverside Transportation, Inc. v. BellSouth Telecommunications, Inc., 847 F.Supp. 453 (M.D.La. 1994); Stoumen v. Public Serv. Mut. Ins. Co., No. Civ. A 94-0233, 1994 WL 111355 (E.D.Pa.1994); Leroy Cattle Co. v. Pina Oil & Chem. Co., No. Civ. A 93-1286-MLB, 1994 WL 151105 (D.Kan.1994); Leung v. Checker Motors Corp., No. 93-C-2704, 1993 WL 515470 (N.D.Ill. 1993); Benfield v. Mocatta Metals Corp., No. 91 Civ. 8255(LJF), 1993 WL 148978 (S.D.N.Y.1993); Hairston v. Home Loan and Investment Bank, 814 F.Supp. 180 (D.Mass.1993); Mayo v. Key Financial Services, Inc., 812 F.Supp. 277 (D.Mass.1993); Averdick v. Republic Financial Services, Inc., 803 F.Supp. 37 (E.D.Ky.1992); Bradbury v. Robertson-Ceco Corp., No. 92-C-3408, 1992 WL 178648 (N.D.Ill. July 22, 1992); Griffin v. Dana Point Condominium Ass’n., 768 F.Supp. 1299 (N.D.Ill.1991). . Although not implicated in this case, it appears that the class member meeting the jurisdictional amount may not have to be named, as long as at least one identified member of the class meets the requirement." }, { "docid": "19838562", "title": "", "text": "did not intend § 1367 to overrule § 1332’s rules of aggregation); Duet v. Lawes, No. 94-0739, 1994 WL 151095, 1994 U.S.Dist. LEXIS 4755 (April 8,1994) (rejecting analysis in Garza (cited below)); Chouest v. American Airlines, Inc., 839 F.Supp. 412, 415 (E.D.La.1993); Griffin v. Dana Point Condominium Ass’n, 768 F.Supp. 1299, 1301 (N.D.Ill.1991); C.D.S. Diversified v. Franchise Finance Corp., 757 F.Supp. 202 (E.D.N.Y.1991) (whether or not § 1367 applied, no jurisdiction to consider pendent party claim) with Lindsay v. Kvortek, 865 F.Supp. 264 (W.D.Penn.1994); Patterson Enterprises v. Bridgestone/Firestone, 812 F.Supp. 1152 (D.Kan.1993) (plain language of § 1367 has the effect of overruling Zahn in a non-class action case where no claim or party is added to the action); Garza v. National American Ins. Co., 807 F.Supp. 1256 (M.D.La.1992) (“[Tjhis court finds that the Congress said what it meant and the Congress meant what it said — the language of § 1367 unavoidably overrules these pre- § 1367 cases in those instances where the requirements of § 1367(a) are fulfilled and the exceptions of § 1367(b) are inapplicable.”). In Patterson Enterprises, three plaintiffs brought a non-class action diversity suit against one defendant arising from a single vehicle accident. The accident was allegedly caused by the failure of the tire manufactured by the defendant. In that case, one of the plaintiffs, Jere J. Patterson, claimed to have suffered damages in excess of $50,000; the other two plaintiffs, Patterson Enterprises, Inc. and Patterson Farms Trucking, each claimed to have suffered damages less than $50,000. The defendant argued that the district court lacked subject matter jurisdiction over the claims asserted by the two plaintiffs who claimed to have suffered damages less than $50,000. Specifically, the defendant argued that 28 U.S.C. § 1367 did not grant supplemental jurisdiction over the related claims of Patterson Enterprises and Patterson Farms Trucking because those claims lacked an independent basis for federal subject matter jurisdiction based upon the amount in controversy. Judge Lungstrum disagreed, holding that the court had supplemental jurisdiction over Patterson Enterprises and Patterson Farms Trucking “under the plain meaning of 28 U.S.C. § 1367 because all" }, { "docid": "10966951", "title": "", "text": "848 F.Supp. 1186 (E.D.Pa.1994); North American Mechanical Servs. Corp. v. Hubert, 859 F.Supp. 1186, 1188-89 (C.D.Ill.1994); Neve Bros. v. Potash Corp. (In re Potash Antitrust Litig.), 866 F.Supp. 406, 414 (D.Minn.1994); Henkel v. ITT Bowest Corp., 872 F.Supp. 872, 877 (D.Kan.1994); Aspe Arquitectos, S.A. de C.V. v. Jamieson, 869 F.Supp. 593, 595 (N.D.Ill.1994); Dirosa v. Grass, 1994 WL 583276, at *2 (E.D.La.1994); Kaplan v. Mentor Corp., 1994 U.S.Dist. LEXIS 15779, at *3 (N.D.Ill.1994), supplemented, 1994 WL 592081, 1994 U.S.Dist. LEXIS 15410 (E.D.Ill.1994); Benninghoff v. Tolson, 1994 WL 519745, at *4 (E.D.Pa.1994); Mayo v. Key Fin. Serv., Inc., 812 F.Supp. 277, 278 (D.Mass.1993); Chouest v. American Airlines, Inc., 839 F.Supp. 412, 414-415 (E.D.La.1993); Hairston v. Home Loan and Inv. Bank, 814 F.Supp. 180, 181 n. 1 (D.Mass.1993); Benfield v. Mocatta Metals Corp., 1993 WL 148978 (S.D.N.Y.1993); Averdick v. Republic Fin. Serv., Inc., 803 F.Supp. 37, 45-46 (E.D.Ky.1992); Bradbury v. Robertson-Ceco Corp., 1992 WL 178648 1994 U.S.Dist. LEXIS 15100 (N.D.Ill.1992); Fink v. Heath, 1991 WL 127664, at *3 (N.D.Ill.1991); Cheramie v. Texaco, Inc., 1991 WL 236784 (E.D.La.1991). . Defendant Staley’s argument that the Court should exercise supplemental jurisdiction over the claims of the class members hinges on the additional argument that the named Plaintiffs meet the amount in controversy requirement. Defendant Staley argues that the amount in controversy requirement can be met for the named Plaintiffs in these cases by attributing all the attorneys' fees to them. Defendant Staley suggests that the Court should be persuaded on this issue by the Fifth Circuit's reasoning in Abbott, 51 F.3d at 526. This argument directly contradicts Ninth Circuit authority holding that attorney’s fees must be attributed to each member on a pro rata basis, and more specifically that attorneys’ fees cannot be aggregated for jurisdictional purposes. Goldberg v. CPC Int’l, Inc., 678 F.2d 1365, 1366-67 (9th Cir.1982), cert. denied, 459 U.S. 945, 103 S.Ct. 259, 74 L.Ed.2d 202 (1982); Czechowski v. Tandy Corp., 731 F.Supp. 406, 409-10 (N.D.Cal.1990). Staley asserts that Goldberg is no longer sound authority due to the Goldberg court’s reliance on Zahn. As discussed above, Zahn is still good authority; therefore," }, { "docid": "14122257", "title": "", "text": "Rule 23 is not included as one of the exceptions to supplemental jurisdiction enumerated in section 1367(b), diversity class actions brought under Rule 23(b)(3) are not excepted from section 1367(a). See id. at -, 114 S.Ct. at 1593. In these circumstances, they continue, the plain language of section 1367 expresses Congress’ intent that diversity class actions be within the district courts’ supplemental jurisdiction, and this Court must enforce the clear language of the statute, notwithstanding countervailing legislative history which purports to add an exception not contained in section 1367(b). See H.R.Rep. No. 101-734, 101st Cong., 2d Sess. 29, 76-77 (1990), reprinted in 1990 U.S.S.C.A.N. 6802, 6875. The Court has reviewed the arguments and rationales of both the “pro-Zahn” faction — represented by the Plaintiffs — and the “anti-Zahn ” faction — represented by the Defendants; at least as it regards diversity class actions, Zahn has retained its viability in the face of section 1367 and warrants granting the Plaintiffs’ motion to remand this action to state court in California. This Court concurs with other available decisions in the class action context that “a close look at both the language of [§ 1367] and its legislative history teaches that the new provision does not change the old law in this area at all.” Griffin v. Dana Point Condominium Ass’n, 768 F.Supp. 1299, 1301 (N.D.Ill.1991); see Riverside Transp., Inc. v. Bellsouth Telecomm., Inc., 847 F.Supp. 453, 455-56 (M.D.La.1994); Stoumen v. Public Serv. Mut. Ins. Co., No. Civ. A 94-0233, 1994 WL 111355, at *2 (E.D.Pa. Mar. 30, 1994); LeRoy Cattle Co. v. Fina Oil & Chem. Co., No. Civ. A 93-1286-MLB, 1994 WL 151105, at *13 (D.Kan. Mar. 2, 1994); Benfield v. Mocatta Metals Corp., No. 91 Civ. 8255, 1993 WL 148978, at *4 (S.D.N.Y. May 5, 1993); Hairston v. Home Loan and Inv. Bank, 814 F.Supp. 180, 181 n. 1 (D.Mass.1993); Mayo v. Key Finan. Serv., Inc., 812 F.Supp. 277, 278 (D.Mass.1993); Averdick v. Republic Finan. Serv., Inc., 803 F.Supp. 37, 45-46 (E.D.Ky.1992); Bradbury v. Robertson-Ceco Corp., No. 92-C-3408, 1992 WL 178648, at *2 (N.D.Ill. July 22, 1992); see also North" }, { "docid": "22231171", "title": "", "text": "(C.D.Ill.1994) (same); Duet v. Lawes, No. 94-0739, 1994 WL 151095, at *2, 1994 U.S.Dist. LEXIS 4755, at *4-5 (E.D.La. Apr. 7, 1994) (same); Riverside Transp., Inc. v. Bellsouth Telecommunications, Inc., 847 F.Supp. 453, 456 (M.D.La.1994) (same); Fink v. Heath, No. 91-2982, 1991 WL 127664, at *3, 1991 U.S.Dist. LEXIS 9182, at *7-8 (N.D.Ill. July 8, 1991) (same); and Griffin v. Dana Point Condominium Ass’n, 768 F.Supp. 1299, 1302 (N.D.Ill.1991) (same) with Lindsay v. Kvortek, 865 F.Supp. 264, 276 (W.D.Pa.1994) (determining that § 1367 supersedes Zahn; case did not involve class action); Patterson Enters., Inc. v. Bridgestone/Firestone, Inc., 812 F.Supp. 1152, 1154 (D.Kan.1993) (same); and Garza v. National Am. Ins. Co., 807 F.Supp. 1256, 1258 & n. 6 (M.D.La.1992) (same). . The impressive array of Professors Burbank, Mengler, and Rowe has observed that ‘‘[i]t would have been better had the statute dealt explicitly with this problem, and the legislative history was an attempt to correct the oversight.” Rowe et al., supra, 40 Emory L.J. at 960 n. 90. They have noted that the supplemental jurisdiction statute is \"not a perfect effort.” Thomas D. Rowe, Jr., et al., A Coda on Supplemental Jurisdiction, 40 Emory L.J. 993, 993 (1991). Some disagree and with inexplicably sharp language, given the reality that most mistakes become “clear” once they are identified. See, e.g., 1 Moore et al., supra, § 0.97[5], at 928 (blaming \"Congressional sloth in drafting the supplemental jurisdiction statute” for confusion over whether Zahn survives § 1367); Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L.J. 445, 471 (1992) (noting that Congress passed § 1367 too quickly to notice some of its problems); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important But Controversial Supplement to Federal Jurisdiction, 41 Emory L.J. 31, 56-58 (1992) (chastising Congress and its legislative advisors for enacting an ambiguous statute); Thomas C. Arthur & Richard D. Freer, Close Enough For Government Work: What Happens When Congress Doesn’t Do Its Job, 40 Emory L.J. 1007, 1007 (1991) (calling § 1367(b) a \"nightmare of draftsmanship”)." }, { "docid": "23207990", "title": "", "text": "Committee cautioned in the Working Papers: \"[t]hese materials were valued background materials which the Committee determined should be published for general consideration whether or not the Committee agreed with their substantive proposals.... In no event should the enclosed materi als be construed as having been adopted by the Committee.” It is unfortunate that some commentators and courts have erroneously concluded that the Working Papers represented the view of the Federal Courts Study Committee. See In re Prudential Ins. Co. of America Sales Practices Litigation, 962 F.Supp. 450, 504-05 (D.N.J.1997), aff'd on other gds., 148 F.3d 283 (3d Cir.1998); Leszczynski v. Allianz Ins., 176 F.R.D. 659, 665-66 (S.D.Fla.1997). . See Thomas M. Mengler, Stephen B. Burbank & Thomas D. Rowe, Jr., Congress Accepts Supreme Court's Invitation to Codify Supplemental Jurisdiction, 74 Judicature 213, 216 (1991). \"[T]he legislative history makes clear that section 1367 is not intended to affect their [class actions under Rule 23] jurisdictional requirements .... [citing Zahn], Thus, the Supreme Court’s holdings that ... all class members must satisfy the amount in controversy requirement, remains good decisional law.” Id. at 215. Section 1367 has engendered an unusually profuse and spirited academic debate. As representative — but by no means complete — see Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L.J. 445, 471 (1991); Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943 (1991); see also Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991); Christopher M. Fairman, Abdication to Academia: The Case of the Supplemental Jurisdiction Statute, 28 U.S.C. § 1367, 19 Seton Hall Legis. J. 157 (1994); Mengler, Burbank & Rowe, Congress Accepts Supreme Court’s Invitation, supra . For a listing of other scholarly articles, see Packard, 994 F.2d at 1045 n. 9. Moore's Federal Practice takes the position that on its face the statute appears to overrule Zahn, but that was not the" }, { "docid": "19838561", "title": "", "text": "Supreme Court’s holding in Zahn has not been overruled by § 1367); Leroy Cattle Co., Inc. v. Fina Oil & Chemical Co., No. 93-1286-MLB, 1994 WL 151105, 1994 U.S.Dist. LEXIS 4802 (D.Kan. March 2, 1994) (“[E]aeh and every court dealing directly with the application of § 1367 in the class action context has ruled, based upon the legislative history, that § 1367 does not abrogate Zahn.... This court perceives no reason why it should depart from these well reasoned decisions.”); Hairston v. Home Loan and Inv. Bank, 814 F.Supp. 180 (D.Mass.1993); Mayo v. Key Financial Services, Inc., 812 F.Supp. 277 (D.Mass.1993) (legislative history of 28 U.S.C. § 1367 indicates that the statute was not intended to affect the jurisdictional requirements for diversity class actions set forth in Zahn). In contrast to the apparent unanimity of courts addressing this issue in the class action context, in non-class actions the courts are divided as to whether § 1367 overrules § 1332’s rules of aggregation. Compare North American Mechanical Services Corp. v. Hubert, 859 F.Supp. 1186 (C.D.Ill.1994) (Congress did not intend § 1367 to overrule § 1332’s rules of aggregation); Duet v. Lawes, No. 94-0739, 1994 WL 151095, 1994 U.S.Dist. LEXIS 4755 (April 8,1994) (rejecting analysis in Garza (cited below)); Chouest v. American Airlines, Inc., 839 F.Supp. 412, 415 (E.D.La.1993); Griffin v. Dana Point Condominium Ass’n, 768 F.Supp. 1299, 1301 (N.D.Ill.1991); C.D.S. Diversified v. Franchise Finance Corp., 757 F.Supp. 202 (E.D.N.Y.1991) (whether or not § 1367 applied, no jurisdiction to consider pendent party claim) with Lindsay v. Kvortek, 865 F.Supp. 264 (W.D.Penn.1994); Patterson Enterprises v. Bridgestone/Firestone, 812 F.Supp. 1152 (D.Kan.1993) (plain language of § 1367 has the effect of overruling Zahn in a non-class action case where no claim or party is added to the action); Garza v. National American Ins. Co., 807 F.Supp. 1256 (M.D.La.1992) (“[Tjhis court finds that the Congress said what it meant and the Congress meant what it said — the language of § 1367 unavoidably overrules these pre- § 1367 cases in those instances where the requirements of § 1367(a) are fulfilled and the exceptions of § 1367(b)" }, { "docid": "10966949", "title": "", "text": "claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. . See generally, Joan Steinman, Section 1367— Another Party Heard From, 41 Emory L.J. 85, 102-3 (1992) (suggesting that the courts interpret the Act to legislatively overrule Zahn); Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L.J. 445, 485-86 (1991) (stating that the plain language of the Act overrules Zahn, but contradicts the legislative history); Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991) (same). Contra Thomas D. Rowe, Jr., Stephen B. Burbank, & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 949 n. 27, 960 n. 90 (1991) (authors who drafted the Act stating that the legislative history was “an attempt to correct an oversight” in the Act that led some commentators to assert that the Act overruled Zahn ). .In Finley the Supreme Court prevented a plaintiff who had satisfied original subject matter jurisdiction under the Federal Tort Claims Act from adding a transactionally-related state claim against a different, non-diverse defendant. . See, e.g. Lindsay v. Kvortek, 865 F.Supp. 264 (W.D.Pa.1994) (determining based on a plain language reading of the statute that Section 1367 legislatively overrules Zahn; case did not involve a class action); Garza v. National Am. Ins. Co., 807 F.Supp. 1256, 1258 (M.D.La.1992) (same); Patterson Enter., Inc. v. Bridgestone/Firestone, Inc., 812 F.Supp. 1152, 1154 (D.Kan.1993) (same); Booty v. Shoney’s, Inc., 872 F.Supp. 1524 (E.D.La.1995) (holding that if the requirements of § 1367(a) are met and the case does not fit one of the exceptions enumerated in (b), the district court has jurisdiction; case was not a class action). . See also Riverside Transp., Inc. v. Bellsouth Telecommunications, Inc., 847 F.Supp. 453, 455-56 (M.D.La.1994); Pierson v. Perrier," }, { "docid": "11049362", "title": "", "text": "Pesch, No. 91-C4967, 1992 WL 159169, at *6 (N.D.Ill. June 29, 1992) (Congress did not intend § 1367(a) to disturb settled case law governing the amount in controversy requirement in diversity cases); McLaughlin, 24 Ariz.St.L.J. 849, 971 (“[T]he statute preserves these rules of aggregation and effects no change in the prior case law’s denial of supplemental jurisdiction for juris-dictionally inadequate claims by plaintiffs.”). In Zahn, the Supreme Court held that in diversity eases involving multiple plaintiffs with separate and distinct claims, including class actions, each plaintiff must present a claim meeting the monetary requirement of the diversity jurisdiction statute. Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). Most district courts have held that § 1367 does not overrule Zahn. See Riverside Transportation v. BellSouth Telecommunications, 847 F.Supp. 453, 456 (E.D.La.1994); Leroy Cattle Co., Inc. v. Fina Oil & Chemical Company, No. Civ.A. 93-1286-MLB, 1994 WL 151105, at *13 (D.Kan. March 2, 1994); Leung v. Checker Motors Corporation, No. 93-C-2704, 1993 WL 515470, at *2 (N.D.Ill. December 7, 1993) (Grady, J.); Averdick v. Republic Financial Services, Inc., 803 F.Supp. 37, 45-46 (E.D.Ky.1992); Griffin v. Dana Point Condominium Ass’n, 768 F.Supp. 1299, 1301 (N.D.Ill.1991) (Shadur, J.). The legislative history of § 1367 explicitly states that § 1367(b) “is not intended to affect” jurisdictional requirements established by Zahn in diversity only class actions. House Report, p. 6875. In addition, to the Zahn requirement, established ease law prohibits a plaintiff from aggregating separate and distinct claims against multiple defendants to meet the amount in controversy requirement. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3704, p. 80. However, if multiple defendants are jointly liable to the plaintiff, the claims against them may be aggregated to fulfill the jurisdiction requirement. Motorists Mutual Insurance Co. v. Simpson, 404 F.2d 511, 513 (7th Cir.1968); National Union Fire Insurance Company of Pittsburgh v. Wilkins-Lowe & Company, 1993 WL 453438, *5 (N.D.Ill. October 27, 1993). Applying these aggregation rules to this case, the Court lacks jurisdiction over Count 2. The amount for which Hubert and United Fire are jointly" }, { "docid": "14122258", "title": "", "text": "decisions in the class action context that “a close look at both the language of [§ 1367] and its legislative history teaches that the new provision does not change the old law in this area at all.” Griffin v. Dana Point Condominium Ass’n, 768 F.Supp. 1299, 1301 (N.D.Ill.1991); see Riverside Transp., Inc. v. Bellsouth Telecomm., Inc., 847 F.Supp. 453, 455-56 (M.D.La.1994); Stoumen v. Public Serv. Mut. Ins. Co., No. Civ. A 94-0233, 1994 WL 111355, at *2 (E.D.Pa. Mar. 30, 1994); LeRoy Cattle Co. v. Fina Oil & Chem. Co., No. Civ. A 93-1286-MLB, 1994 WL 151105, at *13 (D.Kan. Mar. 2, 1994); Benfield v. Mocatta Metals Corp., No. 91 Civ. 8255, 1993 WL 148978, at *4 (S.D.N.Y. May 5, 1993); Hairston v. Home Loan and Inv. Bank, 814 F.Supp. 180, 181 n. 1 (D.Mass.1993); Mayo v. Key Finan. Serv., Inc., 812 F.Supp. 277, 278 (D.Mass.1993); Averdick v. Republic Finan. Serv., Inc., 803 F.Supp. 37, 45-46 (E.D.Ky.1992); Bradbury v. Robertson-Ceco Corp., No. 92-C-3408, 1992 WL 178648, at *2 (N.D.Ill. July 22, 1992); see also North American Mechanical Serv. Corp. v. Hubert, 859 F.Supp. 1186, 1188 (C.D.Ill.1994) (non-class action); Leung v. Checker Motor Corp., No. 93-C-2704, 1993 WL 515470, at *2 (Dec. 7, 1993) (same). Contra Patterson Enterp. v. Bridgestone/Firestone, Inc., 812 F.Supp. 1152, 1154-55 (D.Kan.1993) (nonelass action); Garza v. National American Ins. Co., 807 F.Supp. 1256, 1258 n. 6 (M.D.La.1992) (non-class action) (same). In light of the superior numerical strength of the pro -Zahn faction, the Defendants’ supposedly new weapon — EDF—cannot prevent their defeat. First, the Court simply does not agree that EDF, in any way, clarified courts’ proper use of legislative history in interpreting legislative intent; rather, EDF represents the specific application of an established canon of statutory interpretation — that a court may not look to legislative history to imply an intent contrary to that contained in clear and unambiguous legislation — to a statute that was similar in form to section 1367(b) — both contain enumerated exceptions to a statutory rule. Second, al though it never specifically said it, the result in EDF followed from the" }, { "docid": "22231169", "title": "", "text": "In More v. Intelcom Support Servs., Inc., we noted that § 1367 might affect the Zahn rule, but declined to decide that because the action at issue had been filed before § 1367 took effect. See 960 F.2d 466, 473 (5th Cir.1992). Later, in Watson v. Shell Oil Co., we reasoned that the Zahn rule would demand dis missal of class members’ claims below the jurisdictional threshold. See 979 F.2d 1014, 1021 (5th Cir.1992). However, that case had been filed before § 1367 took effect, and the opinion makes no mention of that statute. See id. at 1021 & n. 27. In any event, Watson has been vacated. When this court ordered the case reheard en banc, see 990 F.2d 805 (5th Cir.1993), the panel opinion in Watson was vacated, see 5th Cir.R. 35 (Internal Operating Procedure), and the en banc rehearing never occurred because the parties settled and the appeal was dismissed. The Third Circuit is the only other circuit to have considered the question. In Packard v. Provident Nat’l Bank, the court noted the conflict among authorities on our question, but declined to resolve it. See 994 F.2d 1039, 1045-46 n. 9 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 440, 126 L.Ed.2d 373 (1993). . Compare Henkel v. ITT Bowest Corp., 872 F.Supp. 872, 877 (D.Kan.1994) (holding that § 1367 did not overrule Zafen); Aspe Arquitectos, S.A. de C.V. v. Jamieson, 869 F.Supp. 593, 595 (N.D.Ill.1994) (same); Dirosa v. Grass, No. 94-2551, 1994 WL 583276, at *2, 1994 U.S.Dist. LEXIS 15100, at *7 (E.D.La. Oct. 19, 1994) (same); Kaplan v. Mentor Corp., No. 94-6249, 1994 U.S.Dist. LEXIS 15779, at *3 (N.D.Ill. Oct. 17, 1994) (same), supplemented, 1994 U.S.Dist. LEXIS 15410 (E.D.Ill. Oct. 24, 1994); Benninghoff v. Tolson, No. 94-2903, 1994 WL 519745, at *4, 1994 U.S.Dist. LEXIS 13428, at *11 (E.D.Pa. Sept. 22, 1994) (same); Clement v. Occidental Chem. Corp., Nos. 94—1315, 94-1316, 94-1317, 1994 WL 479155, at *4, 1994 U.S.Dist.LEXIS 12387, at *19 (E.D.La. Aug. 30, 1994) (same); Potash, 866 F.Supp. at 414 (same); North Am. Mechanical Servs. Corp. v. Hubert, 859 F.Supp. 1186, 1188-89" }, { "docid": "10966950", "title": "", "text": "that the legislative history was “an attempt to correct an oversight” in the Act that led some commentators to assert that the Act overruled Zahn ). .In Finley the Supreme Court prevented a plaintiff who had satisfied original subject matter jurisdiction under the Federal Tort Claims Act from adding a transactionally-related state claim against a different, non-diverse defendant. . See, e.g. Lindsay v. Kvortek, 865 F.Supp. 264 (W.D.Pa.1994) (determining based on a plain language reading of the statute that Section 1367 legislatively overrules Zahn; case did not involve a class action); Garza v. National Am. Ins. Co., 807 F.Supp. 1256, 1258 (M.D.La.1992) (same); Patterson Enter., Inc. v. Bridgestone/Firestone, Inc., 812 F.Supp. 1152, 1154 (D.Kan.1993) (same); Booty v. Shoney’s, Inc., 872 F.Supp. 1524 (E.D.La.1995) (holding that if the requirements of § 1367(a) are met and the case does not fit one of the exceptions enumerated in (b), the district court has jurisdiction; case was not a class action). . See also Riverside Transp., Inc. v. Bellsouth Telecommunications, Inc., 847 F.Supp. 453, 455-56 (M.D.La.1994); Pierson v. Perrier, 848 F.Supp. 1186 (E.D.Pa.1994); North American Mechanical Servs. Corp. v. Hubert, 859 F.Supp. 1186, 1188-89 (C.D.Ill.1994); Neve Bros. v. Potash Corp. (In re Potash Antitrust Litig.), 866 F.Supp. 406, 414 (D.Minn.1994); Henkel v. ITT Bowest Corp., 872 F.Supp. 872, 877 (D.Kan.1994); Aspe Arquitectos, S.A. de C.V. v. Jamieson, 869 F.Supp. 593, 595 (N.D.Ill.1994); Dirosa v. Grass, 1994 WL 583276, at *2 (E.D.La.1994); Kaplan v. Mentor Corp., 1994 U.S.Dist. LEXIS 15779, at *3 (N.D.Ill.1994), supplemented, 1994 WL 592081, 1994 U.S.Dist. LEXIS 15410 (E.D.Ill.1994); Benninghoff v. Tolson, 1994 WL 519745, at *4 (E.D.Pa.1994); Mayo v. Key Fin. Serv., Inc., 812 F.Supp. 277, 278 (D.Mass.1993); Chouest v. American Airlines, Inc., 839 F.Supp. 412, 414-415 (E.D.La.1993); Hairston v. Home Loan and Inv. Bank, 814 F.Supp. 180, 181 n. 1 (D.Mass.1993); Benfield v. Mocatta Metals Corp., 1993 WL 148978 (S.D.N.Y.1993); Averdick v. Republic Fin. Serv., Inc., 803 F.Supp. 37, 45-46 (E.D.Ky.1992); Bradbury v. Robertson-Ceco Corp., 1992 WL 178648 1994 U.S.Dist. LEXIS 15100 (N.D.Ill.1992); Fink v. Heath, 1991 WL 127664, at *3 (N.D.Ill.1991); Cheramie v. Texaco, Inc., 1991 WL 236784 (E.D.La.1991)." }, { "docid": "22231168", "title": "", "text": "in exceptional circumstances, there are other compelling reasons for declining jurisdiction. . See, e.g., 1 James W. Moore et al., Moore’s Federal Practice, ¶ 0.97[5], at 928 (2d ed. 1994); 2 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 6.11, at 6-48 (3d ed. 1992); Joan Steinman, Section 1367 — Another Party Heard From, 41 Emory L.J. 85, 103 (1992); Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991). . See Thomas D. Rowe, Jr., Stephen B. Burbank, & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n. 90 (1991). Professors Rowe, Burbank, and Mengler all had a hand in crafting the supplemental jurisdiction statute. See Rowe et al., supra, 40 Emory L.J. at 949 n. 27; H.R.Rep. No. 734, 101st Cong., 2d Sess. 27, reprinted in 1990 U.S.C.C.A.N. 6860, 6873 n. 13. . This circuit has twice broached the question, but never answered it. In More v. Intelcom Support Servs., Inc., we noted that § 1367 might affect the Zahn rule, but declined to decide that because the action at issue had been filed before § 1367 took effect. See 960 F.2d 466, 473 (5th Cir.1992). Later, in Watson v. Shell Oil Co., we reasoned that the Zahn rule would demand dis missal of class members’ claims below the jurisdictional threshold. See 979 F.2d 1014, 1021 (5th Cir.1992). However, that case had been filed before § 1367 took effect, and the opinion makes no mention of that statute. See id. at 1021 & n. 27. In any event, Watson has been vacated. When this court ordered the case reheard en banc, see 990 F.2d 805 (5th Cir.1993), the panel opinion in Watson was vacated, see 5th Cir.R. 35 (Internal Operating Procedure), and the en banc rehearing never occurred because the parties settled and the appeal was dismissed. The Third Circuit is the only other circuit to have considered the question. In Packard v. Provident Nat’l Bank, the court noted" }, { "docid": "22859272", "title": "", "text": "argument is made that 28 U.S.C. § 1367(a) provides supplemental jurisdiction over diversity class members who do not individually meet the amount in controversy requirement, thus legislatively overruling Zahn. The authors of Moore's have retreated from their position based on the statute's legislative history, which states that section 1367 was not intended to affect jurisdictional requirements in diversity-based class actions and cites Zahn. 1 Moore et ah, supra, ¶ 0.97[5], at 927 (1993); see also H.R.Rep. No. 734, P.L. 101-650, 101st Cong., 2d Sess., reprinted in 1990 U.S.C.C.A.N. 6802, 6860, 6875. Newberg, on the other hand, discounts this history, stating that because the statute is unambiguous on its face, legislative history may not be resorted to according to the Supreme Court's decision in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). This question has spawned a considerable academic debate as well. See Thomas M. Mengler, Stephen B. Burbank & Thomas D. Rowe, Jr., Congress Accepts Supreme Court’s Invitation to Codify Supplemental Jurisdiction, 74 Judicature 213, 215 (1991) (academics who assisted in drafting section 1367 assert that legislative history indicates no intent to overrule Zahn); Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emoiy L.J. 445, 485-86 (1991) (expressing regret that intent not to overrule Zahn is \"buried in the legislative history”); Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction'? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n. 90 (1991) (admitting that the statute could have been better drafted); Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991) (asserting that statutory language overrules Zahn and doubting that legislative history can save it); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important but Controversial Supplement to Federal Jurisdiction, 41 Emory L.J. 31, 56-58 (1992) (indicating that, notwithstanding the legislative history, the language of section 1367 tracks closely the language suggested by the Federal Courts Study Committee," }, { "docid": "23207991", "title": "", "text": "remains good decisional law.” Id. at 215. Section 1367 has engendered an unusually profuse and spirited academic debate. As representative — but by no means complete — see Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L.J. 445, 471 (1991); Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943 (1991); see also Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991); Christopher M. Fairman, Abdication to Academia: The Case of the Supplemental Jurisdiction Statute, 28 U.S.C. § 1367, 19 Seton Hall Legis. J. 157 (1994); Mengler, Burbank & Rowe, Congress Accepts Supreme Court’s Invitation, supra . For a listing of other scholarly articles, see Packard, 994 F.2d at 1045 n. 9. Moore's Federal Practice takes the position that on its face the statute appears to overrule Zahn, but that was not the intent of the statute’s academic drafters or Congress. See 16 Moore et al., supra, V 106.44, at 106-62 to 106-63. Federal Practice and Procedure takes á broader view, noting as compelling evidence that overruling Zahn would be inconsistent with the often-mentioned purpose of codifying the pre-Finley conception of supplemental jurisdiction. See 13 Wright, Miller & Cooper, supra, § 3523.1, at 112 (Supp.1998). . Stromberg Metal Works, Inc. v. Press Mechanical, Inc., 77 F.3d 928 (7th Cir.1996), points out the anomaly in Section 1367(b), which lists Rule 20 among the Rules which plaintiffs may not use to bring claims \"against” persons under supplemental jurisdiction, even though the text does not prohibit Rule 20 joinder of non-diverse plaintiffs. See id. at 932. Subsection (b) denies jurisdiction over persons proposed to be joined as plaintiffs under Rule 19 or intervening under Rule 24 \"when exercising supplemental diversity jurisdiction would be inconsistent with the jurisdictional requirements of section 1332.” The omission of Rule 20 at that point is an unintentional drafting gap, but the legislative history provides more than" }, { "docid": "9994019", "title": "", "text": "telephone directories, including \"The Real Yellow Pages.” . See Pis.’ first suppl. mem. in supp. of motion to remand at 1-2. . To determine the jurisdictional issue raised hy the plaintiffs' motion to remand, the Court shall assume, without deciding, that the plaintiffs constitute a proper class under Rule 23. . 414 U.S. 291, 301, 94 S.Ct. 505, 512, 38 L.Ed.2d 511 (1973). . Section 1367 was amended by the Judicial Improvements Act of 1990, Pub.L. 101-650, and encompasses the concept of \"supplemental jurisdiction,” which was intended to replace \"ancillary” and “pendant” jurisdiction. . Garza v. National Am. Ins. Co., 807 F.Supp. 1256, 1257-58 (M.D.La.1992); Patterson Enter. v. Bridgestone/Firestone, Inc., 812 F.Supp. 1152, 1154-55 (D.Kan.1993). . Durrett v. John Deere Co., 150 F.R.D. 555, 561 (N.D.Tex. 1993); Leung v. Checker Motors Corp., No. 93-C-2704, 1993 WL 515470 at *2 (N.D.Ill. Dec. 7, 1993); Benfield v. Mocatta Metals Corp., No. 91 Civ. 8255 (LJF), 1993 WL 148978 at *4 (S.D.N.Y. May 5, 1993); Hairston v. Home Loan and Inv. Bank, 814 F.Supp. 180, 181 (D.Mass.1993); Mayo v. Key Fin. Servs., Inc., 812 F.Supp. 277, 278 (D.Mass.1993); Averdick v. Republic Fin. Servs., Inc., 803 F.Supp. 37, 45 (E.D.Ky.1992); Bradbury v. Robertson-CECO Corp., No. 92-C-3408, 1992 WL 178648 at *1-2 (N.D.Ill. July 22, 1992); Cheramie v. Texaco, Inc., Civ.A. No. 91-3114, 1991 WL 236784 at *1 (E.D.La. Oct. 31, 1991); Fink v. Heath, No. 91-C-2982, 1991 WL 127664 at *2-3 (N.D.Ill. July 8, 1991); Griffin v. Dana Point Condominium Ass’n, 768 F.Supp. 1299, 1301-02 (N.D.Ill. 1991). . H.R.Rep. No. 734, 101st Cong., 2d Sess. 29 (1990), reprinted, in 1990 U.S.C.C.A.N. 6802, 6860, 6875. . 979 F.2d 1014, 1021 (5th Cir.1992), reh’g en banc granted, 990 F.2d 805 (5th Cir.1993). . Watson, 979 F.2d at 1021. . Mem. Supporting Defs.’ Mot. to Sever Claims and to Deny Class Status at p. 1. . Defs.' mem. at 6. . Defs.’ mem. at 8. . Defs.’ mem. at 6. . Judicial Improvements Act of 1990, Pub.L. 101-650. . David D. Siegel, Commentary on 1990 Revision, 28 U.S.C.A. 1441(c) (West Supp.1993). . See also Averdick v. Republic" }, { "docid": "22231167", "title": "", "text": "shall include claims that involve the joinder or intervention of additional parties. (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. . See, e.g., 1 James W. Moore et al., Moore’s Federal Practice, ¶ 0.97[5], at 928 (2d ed. 1994); 2 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 6.11, at 6-48 (3d ed. 1992); Joan Steinman, Section 1367 — Another Party Heard From, 41 Emory L.J. 85, 103 (1992); Thomas C. Arthur & Richard D. Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 981 (1991). . See Thomas D. Rowe, Jr., Stephen B. Burbank, & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n. 90 (1991). Professors Rowe, Burbank, and Mengler all had a hand in crafting the supplemental jurisdiction statute. See Rowe et al., supra, 40 Emory L.J. at 949 n. 27; H.R.Rep. No. 734, 101st Cong., 2d Sess. 27, reprinted in 1990 U.S.C.C.A.N. 6860, 6873 n. 13. . This circuit has twice broached the question, but never answered it." }, { "docid": "7938720", "title": "", "text": "Point Condo. Ass’n, 768 F.Supp. 1299, 1302 (N.D.Ill.1991) (citing § 1367's legislative history for the proposition that \"a dramatic change in established law is not within the purview of [§ 1367]”); Tortola Rests., L.P. v. Kimberly-Clark Corp., 987 F.Supp. 1186, 1190 (N.D.Cal.1997) (\"In light-of the legislative history, and the ensuing case law relevant to the issue, this Court agrees with those courts that have found that the Judicial Improvements Act did not overrule the Supreme Court decision in Zahn.”) (footnote omitted). . See Russ v. State Farm Mut. Auto. Ins. Co., 961 F.Supp. 808, 817 (E.D.Pa.1997) (\"[I]f section 1367 is to be taken at face value, it would appear to contemplate supplemental jurisdiction over diversity class actions.... But there is reason to question whether section 1367’s apparent inclusion of diversity class actions .-.. should be taken at face value [because the legislative history] flatly contradict[s] that reading of the statute.”). . See, e.g., Riverside Transp. v. Bellsouth Telecomm., 847 F.Supp. 453, 456 (M.D.La.1994) (\"[T]he Supreme Court's holding in Zahn has not been overruled by § 1367. This conclusion is supported by the language and legislative history of § 1367, the Fifth Circuit's decision in Watson [v. Shell Oil Co., 979 F.2d 1014 (5th Cir.1992)], and a majority of cases which have interpreted § 1367.”); accord Neve Bros. v. Potash Corp., 866 F.Supp. 406, 413 (D.Minn.1994); see also Bradbury v. Robertson-Ceco Corp., 92 C 3408, 1992 WL 178648, at *2, 1992 U.S. Dist. LEXIS 10888, at *6-7 (N.D.Ill.1992) (\"This court is also persuaded that Section 1367 did not alter the requirements of Zahn.\"). . See, e.g., Aspe Arquitectos, S.A. de C.V. v. Jamieson, 869 F.Supp. 593, 595 (N.D.Ill.1994) (\"[F]ederal jurisdiction must exist independently over each plaintiffs claim — that is the teaching of the seminal decision in Zahn v. International Paper Co., and it has not been changed by Section 1367’s later enactment of the concept of supplemental jurisdiction. ... ”); Kaplan v. Mentor Corp., No. 94 C 6249, 1994 WL 592081, 1994 U.S. Dist. LEXIS 15779 (N.D.Ill.1994) (same); Dirosa v. Grass, No. 94-2551, 1994 WL 583276, at *2, 1994 U.S." } ]

[ { "docid": "14110015", "title": "", "text": "of Appeals for the Second Circuit in Lopez, 521 F.2d at 437. In light of the amendment that court concluded that the statute was not limited to instances of harboring in connection with smuggling. Id. at 440-41. The court held that providing shelter, obtaining employment, providing transportation to and from work, and arranging sham marriages for illegal aliens was conduct tending to substantially facilitate the aliens’ remaining in the United States illegally. Id. at 441. In a later decision, the Second Circuit announced the following test for determining what constitutes shielding, concealing, and harboring under 8 U.S.C. § 1324: “harboring, within the meaning of § 1324, encompasses conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.” United States v. Kim, 193 F.3d 567, 574 (2d Cir.1999) (emphasis added); see also United States v. Cantu, 557 F.2d 1173, 1180 (5th Cir.1977) (stating that proper test is whether charged conduct tended “substantially to facilitate an alien’s remaining in the United States illegally”) (quoting Lopez, 521 F.2d at 441). Convictions under § 1324 generally involve defendants who provide illegal aliens with affirmative assistance, such as shelter, transportation, direction about how to obtain false documentation, or warnings about impending investigations. See generally id. at 1175-76, 1180; United States v. Acosta de Evans, 531 F.2d 428 (9th Cir.1976); Lopez, 521 F.2d at 437. In contrast, we have found no cases in which a defendant has been convicted under this statute for merely giving an alien advice to lay low and to stay away from the address on file with the INS, obvious information that any fugitive would know. For example, in Kim, the defendant Kim ordered his employee, an illegal alien, to report falsely to the INS that he had been terminated from his job, and Kim required the employee to obtain false documentation for the purpose of misleading the INS. Kim, 193 F.3d at 575. The court held that Kim’s conduct met the definition of harboring under 8 U.S.C. § 1324 because it tended substantially to facilitate the alien’s remaining" } ]

[ { "docid": "14997134", "title": "", "text": "consistently found that providing housing to aliens lacking lawful immigration status constitutes unlawful “harboring,” its housing provisions do no more than concurrently enforce federal law. Hazleton is wrong. As we have explained, Hazleton’s housing provisions operate in a field which the federal government exclusively occupies. Therefore, even if Hazleton’s housing provisions did concurrently enforce federal law, this would not save them; even harmonious regulation is pre-empted here. However, Hazleton is also plainly incorrect in claiming that its housing provisions “mirror” federal law. The federal prohibition against harboring has never been interpreted to apply so broadly as to encompass the typical landlord/tenant relationship. 8 U.S.C. § 1824(a)(l)(A)(iii) criminalizes harboring an alien, knowing or in reckless disregard of the fact that the alien came to, or remains in, the United States in violation of law. The statute, however, does not define the term “harboring,” and the Supreme Court has yet to do so. As a result, the breadth of the term is currently in dispute among the Circuit Courts of Appeals. Some courts, our own included, have found that culpability requires some conduct that helps to conceal an alien from authorities. We, along with the Court of Appeals for the Second Circuit, define “harboring” as conduct “tending to substantially facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting the alien’s unlawful presence.” United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir.2008) (internal quotation marks omitted) (emphasis added); see also United States v. Kim, 193 F.3d 567, 574 (2d Cir.1999) (Harboring “encompasses conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.”) (emphasis added). Thus, we have held that “harboring” requires some act of obstruction that reduces the likelihood the government will discover the alien’s presence. It is highly unlikely that a landlord’s renting of an apartment to an alien lacking lawful immigration status could ever, without more, satisfy this definition of harboring. Renting an apartment in the normal course of business is not in and of itself conduct that prevents the" }, { "docid": "22589238", "title": "", "text": "transporting conviction for insufficiency of the evidence. B. Silveus was also charged with, and convicted on, one count of harboring Jean “within an apartment at 5-24 Estate Sorgenfri” from “February 8, 2006 up to and including September 15, 2006,” in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). App. 22. The relevant section is violated if a person, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation. 8 U.S.C. 1324(a)(1)(A)(iii). To sustain a conviction under this section, the government must prove “conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting [the alien’s] unlawful presence.” United States v. Ozcelik, 527 F.3d 88, 99 (3d Cir.2008) (quotation marks and alteration omitted). Silveus knew that Jean was an illegal alien in the United States. Therefore, the only issue on appeal is whether Silveus “harbored” him at her apartment, as charged in the indictment. The government does not dispute that cohabitation with Jean, taken alone, does not constitute “harboring” within the meaning of the statute. Rather, the government asserts that there was sufficient evidence for a reasonable juror to conclude that Silveus violated the harboring provision of § 1324 in early April when Agent Harrison visited the apartment looking for Jean. The government’s only evidence offered at trial to support the harboring conviction is Agent Harrison’s testimony: Q. And when you went [to the apartment] searching for [Jean], what, if anything, happened? A. As I approached the apartment, I heard the door of the apartment slam. Then I heard bushes break. And as I rounded the corner, I saw Ms. Silveus shutting the front door. Q. And when you saw Ms. Silveus shutting the front door, what, if anything, did you do? A. She opened the window and talked to me through the window.... I asked her if Dorsainvil Jean was" }, { "docid": "14110016", "title": "", "text": "Lopez, 521 F.2d at 441). Convictions under § 1324 generally involve defendants who provide illegal aliens with affirmative assistance, such as shelter, transportation, direction about how to obtain false documentation, or warnings about impending investigations. See generally id. at 1175-76, 1180; United States v. Acosta de Evans, 531 F.2d 428 (9th Cir.1976); Lopez, 521 F.2d at 437. In contrast, we have found no cases in which a defendant has been convicted under this statute for merely giving an alien advice to lay low and to stay away from the address on file with the INS, obvious information that any fugitive would know. For example, in Kim, the defendant Kim ordered his employee, an illegal alien, to report falsely to the INS that he had been terminated from his job, and Kim required the employee to obtain false documentation for the purpose of misleading the INS. Kim, 193 F.3d at 575. The court held that Kim’s conduct met the definition of harboring under 8 U.S.C. § 1324 because it tended substantially to facilitate the alien’s remaining in the United States illegally. Id. In effect, Kim directed his alien-employee to obtain false documentation as a condition of retaining his employment and gave detailed direction about how to affirmatively mislead the INS. The instruction was specific and involved falsifying documents. Ozcelik’s conduct here is not comparable. He merely passed along general information to Tuncer and made no suggestions regarding falsifying documents. In another case illustrating the type of conduct that falls within the statute, United States v. Sanchez, 963 F.2d 152, 154-55 (8th Cir.1992), the defendant Sanchez provided illegal aliens with apartments and immigration papers. The Court of Appeals agreed that this justified Sanchez’s conviction for shielding, harboring, or concealing under § 1324. Id. at 155-56. In yet another decision, United States v. Varkonyi 645 F.2d 453, 459 (5th Cir.1981), the defendant forcibly interfered with INS agents to prevent the aliens’ apprehension. In addition, the defendant provided both employment and lodging to the aliens and assisted at least one of them to escape from INS custody. Id. It is true, as the government" }, { "docid": "22589237", "title": "", "text": "approached him and the other illegal aliens and collected identification documents and money for transportation to St. Thomas. Next, both Marc and Vancol testified that either Silveus or Jean collected their identification documents before they got into Silveus’s SUV, which she drove onto the ferry. Vancol additionally testified that Silveus and Jean hid him in the rear of the vehicle prior to boarding the ferry. Moreover, the government produced Haitian identification documents that had been concealed underneath the front passenger side floor mat of Silveus’s vehicle. Finally, the jury was informed that Silveus was in the business of filing asylum papers and translating for Haitian aliens, which supported the government’s theory that Silveus and Jean transported the illegal aliens not as a friendly gesture, but rather to develop their client base. Given the evidence presented at trial, a rational juror could have concluded that Silveus acted with the intent to further Marc, Supreme, and Vancol’s illegal presence in the United States. We will therefore affirm the District Court’s denial of Silveus’s motion to dismiss the transporting conviction for insufficiency of the evidence. B. Silveus was also charged with, and convicted on, one count of harboring Jean “within an apartment at 5-24 Estate Sorgenfri” from “February 8, 2006 up to and including September 15, 2006,” in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). App. 22. The relevant section is violated if a person, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation. 8 U.S.C. 1324(a)(1)(A)(iii). To sustain a conviction under this section, the government must prove “conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting [the alien’s] unlawful presence.” United States v. Ozcelik, 527 F.3d 88, 99 (3d Cir.2008) (quotation marks and alteration omitted). Silveus knew that Jean was an illegal alien in the United States. Therefore," }, { "docid": "8777319", "title": "", "text": "of ‘harboring’ that is equally prohibited by federal law.” (Doc. 69 at 45 [citing 8 U.S.C. § 1324(a)(1)(A)(iii) ].) Neither Congress nor the Supreme Court has defined the term “harboring.” However, the Circuit Courts of Appeal have consistently defined “harboring” as facilitating the alien remaining unlawfully in the United States. See, e.g., United States v. Kim, 193 F.3d 567, 574 (2d Cir.1999)(holding that harboring “encompasses conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.”); United States v. Cantu, 557 F.2d 1173 (5th Cir.1977). In Cantu, the former Fifth Circuit held that Section 1324 prohibits conduct “tending substantially to facilitate an alien’s remaining in the United States illegally.” Cantu, 557 F.2d at 1180 (citation omitted). It does not appear the Eleventh Circuit has altered this standard in the years following Cantu. See, e.g., Edwards v. Prime, Inc., 602 F.3d 1276, 1299 (11th Cir.2010); Zheng, 306 F.3d at 1086 (referring to harboring in the general sense of facilitating an alien’s presence in the United States). Therefore, the court will follow Cantu. Under the standard articulated in Cantu, no Fifth Circuit or Eleventh Circuit case has held that the mere provision of rental housing to someone he knew or had reason to know was an unlawfully-present alien constitutes “substantial facilitation,” of the alien remaining in the United States and this court declines to so hold. The State Defendants cite a list of cases to show that the act of providing housing to unlawfully present aliens constitutes harboring under federal law. (See doc. 38 at 80-82.) However, none of these cases supports a finding that providing rental housing to unlawfully present aliens, without more, constitutes harboring within the meaning of 8 U.S.C. § 1324. For instance, the State Defendants cite, inter alia, United States v. Tipton, 518 F.3d 591 (8th Cir.2008), Zheng, 306 F.3d 1080, and United States v. Varkonyi 645 F.2d 453 (5th Cir.1981), to show that H.B. 56 is no more restrictive than federal law. These cases, however, involved more than the mere provision of rental housing. See" }, { "docid": "14110018", "title": "", "text": "argues, that some activity short of providing shelter would violate the statute. In United States v. Rubio-Gonzalez, 674 F.2d 1067, 1069-70 (5th Cir.1982), several INS agents undertook to investigate whether certain employees at a Texas work site were illegal aliens. Upon entering the work area, one agent stopped Rubio-Gonzalez and asked him for identification. The identification established that Rubio-Gonzalez was a legal resident. As the agents proceeded to look for other employees, Rubio-Gonzalez sped away on his motorcycle to another part of the work site. He then began speaking loudly and making gestures towards the INS agents, telling two other individuals (later proven to be illegal aliens) that the immigration authorities were present. The two aliens then fled. Id. at 1070. The Court of Appeals held that Rubio-Gonzalez’s conduct in alerting the illegal aliens to flee from investigating INS officers constituted “shielding from detection” within the meaning of 8 U.S.C. § 1324. Id. at 1072. The court reasoned that shielding does not imply “any requirement that a physical barrier of some kind be involved,” nor does it imply that a trick or artifice be used. Id. In Rubio-Gonzalez, there was an immediate threat to the illegal aliens, that is, the physical presence of the INS agents who intended to apprehend illegal aliens. Rubio-Gonzalez, who had knowledge of the imminence of the apprehension, actively sought out illegal aliens and alerted them. There was a close temporal proximity between the threat to the illegal aliens and the warnings the defendant undertook to spread. In addition, the defendant’s conduct was an affirmative and active response to an impending threat. In contrast, here there is no evidence that Ozcelik knew about any imminent threat to Tuncer’s immigration status. Nor is there any evidence that Ozcelik actively attempted to intervene in or delay an impending immigration investigation. We agree with the Fifth Circuit that the terms “shielding,” “harboring,” and “concealing” under § 1324 encompass conduct “tending to substantially facilitate an alien’s remaining in the United States illegally” and to prevent government authorities from detecting the alien’s unlawful presence. Id. at 1073. We also agree that" }, { "docid": "8777314", "title": "", "text": "Despite superficial similarities, however, Section 7 is not identical to § 1324. See Whiting, 131 S.Ct. at 1982 (noting that state law traces federal law). For example, O.C.G.A. § 16-11-202 prohibits knowingly inducing, enticing or assisting illegal aliens to enter Georgia. Section 1324’s corresponding “inducement” provision prohibits inducing an alien to “come to, enter, or reside in the United States.” 8 U.S.C. § 1324. Once in the United States, it is not a federal crime to induce an illegal alien to enter Georgia from another state. Similarly, O.C.G.A. § 16-11-201 defines “harboring” as “any conduct that tends to substantially help an illegal alien to remain in the United States in violation of federal law,” subject to several exceptions. Under § 1324, federal courts have also discussed the bounds of “harboring,” developing a significantly different definition. See Hall v. Thomas, 753 F.Supp.2d 1113, 1158 (N.D.Ala.2010)(“The plain language reading of ‘harbor’ to require provision of shelter or refuge, or the taking of active steps to prevent authorities from discovering that the employee is unauthorized or illegally remaining in the country; should control.”); United States v. Kim, 193 F.3d 567, 573-74 (2d Cir.1999)(harboring defined as “conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.”); Edwards v. Prime, Inc., 602 F.3d 1276, 1298-99 (11th Cir.2010)(discussing whether hiring illegal alien constituted harboring under § 1324).... Still, the Defendants contend that HB 87 does not create new crimes, but rather “creates a mechanism by which [immigration crimes] could be prosecuted at a local level.” (Defs.’ Br. in Opp’n to Pls.’ Mot. for Prelim. Injunction, at 17.) No doubt the Defendants believe such a mechanism is necessary. Indeed, the Defendants assert that “every day that passes with passive enforcement of the federal law is a day that drains the state coffers.” (Id. at 14.) In response to this concern, Section 7 creates a state system for prosecuting and interpreting immigration law, just as Section 8 creates a state system for policing civil immigration offenses. Under Section 7, state agents will exercise prosecutorial discretion." }, { "docid": "14505055", "title": "", "text": "need detailed factual allegations, ... a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. On appeal, Bolmer argues that the District Court erred in finding that he failed to allege a pattern of racketeering activity. Bolmer argues that he adequately pled two RICO predicate acts. First, he asserts that the Property Managers violated 8 U.S.C. § 1324(a)(l)(A)(iii), which prohibits a person from “concealing], harbor[ing], or shielding] from detection, or attempting] to conceal, harbor, or shield from detection” an alien who has illegally entered or remained in the United States, “in any place, including any building or any means of transportation.” Second, Bolmer asserts that the Property Managers violated 8 U.S.C. § 1324(a)(l)(A)(iv), which prohibits a person from “encouraging] or inducing] an alien to ... reside in the United States, knowing or in reckless disregard of the fact that such ... residence is or will be in violation of law.” We address each of these arguments in turn. A. Under 8 U.S.C. § 1324(a)(l)(A)(iii) a person is criminally liable if she, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation. We first addressed the question of what conduct constitutes the crime of harboring in United States v. Ozcelik, 527 F.3d 88 (3d Cir.2008). In that case, Hakan Ozcelik was charged with harboring after he gave general advice to “stay low” to an individual whom he knew to be in the United States illegally. Ozcelik, 527 F.3d at 97. We reversed Ozcelik’s harboring conviction, holding that “the terms ‘shielding,’ ‘harboring,’ and ‘concealing’ under § 1324 encompass conduct ‘tending to substantially facilitate an alien’s remaining in the United States illegally’ and to prevent government authorities from detecting the alien’s unlawful presence.” Id. (quoting United States v. Rubio-Gonzalez, 674 F.2d 1067, 1073 (5th Cir.1982)). We added that" }, { "docid": "11124325", "title": "", "text": "about the propriety of concurrent enforcement when the local enforcement does impair federal regulatory interests; yet, that is the situation here. Moreover, the City’s argument simply cannot be reconciled with the Supreme Court’s holding in Arizona. There, the Court reasoned that “[although § 5(C) attempts to achieve one of the same goals as federal law — the deterrence of unlawful employment — it involves a conflict in the method of enforcement.” Arizona, 132 S.Ct. at 2505. The Court went on to explain that it had previously “recognized that a ‘[conflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy.’” Id. (quoting Motor Coach Employees, 403 U.S. at 287, 91 S.Ct. 1909). Thus, the Court found § 5(C) pre-empted even though the provision imposed sanctions only on conduct already prohibited under federal law. Furthermore, it must be remembered that the housing provisions are not “concurrent” with federal law, despite Hazleton’s argument to the contrary. In addition to interfering with federal removal discretion, the housing provisions conflict with federal law because they define “harboring” to include simple landlord-tenant relationships. Although the Supreme Court has yet to define “harboring” as that term is used in 8 U.S.C. § 1324(a)(l)(A)(iii), we have found that culpability requires some act of concealment from authorities. See Lozano II, 620 F.3d at 223. “We ... define ‘harboring’ as conduct ‘tending to substantially facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting the alien’s unlawful presence. ” Id. (quoting United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir.2008) (emphasis added)); see also United States v. Kim, 193 F.3d 567, 574 (2d Cir.1999) (Harboring “encompasses conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.”). Renting an apartment in the normal course of business is not, without more, conduct that prevents the government from detecting an alien’s unlawful presence. Thus, it is highly unlikely that renting an apartment to an unauthorized alien would be sufficient to constitute harboring in violation of" }, { "docid": "6152565", "title": "", "text": "United States v. Lopez, 521 F.2d 437 (2nd Cir. 1975), this court in affirming a defendant’s conviction for harboring illegal aliens, said: Although our task would have been lightened if Congress had expressly defined the word ‘harbor,’ we are persuaded by the language and background of the revision of the statute that the term was intended to encompass conduct tending substantially to facilitate an alien’s ‘remaining in the United States illegally,’ provided, of course, the person charged has knowledge of the alien’s unlawful status. * * * We are satisfied that appellant’s conduct is clearly encompassed within the meaning of § 1324 and that the construction urged by him would have the effect of failing to implement its language and purpose. In United States v. Cantu, 557 F.2d 1173 (5th Cir. 1977), that court, in likewise affirming a conviction for a violation of the same statute, where the defendant knowingly employed illegal aliens in his restaurant, said: * * * We agree with the conclusion in Lopez that section 1324 does not prohibit only smuggling-related activity, but also activity ‘tending substantially to facilitate an alien’s “remaining in the United States illegally.” ’ 557 F.2d at 1180. Under the predecessor to the present statute this court in United States v. Smith, 112 F.2d 85 (2nd Cir. 1940), held that a conviction for harboring was sufficient by proof that the alien prostitutes employed by the defendant were told to reveal to no one that they were Canadians but rather to say that they were from a town in New York, and that the word “harbor” means only that the girls shall be sheltered from the Immigration authorities and shielded from observation to prevent their discovery as aliens. The evidence clearly showed that the defendants employed numerous illegal aliens as prostitutes; that these illegal aliens were kept in a common section of the premises and provided with a means of escape by the defendants in the event INS officials should enter the premises. To prevent detection by the INS the defendants installed and utilized closed circuit television cameras and an alarm system to." }, { "docid": "14295143", "title": "", "text": "at 123-24, 99 S.Ct. 2198. “[A] defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution.” Id. at 125, 99 S.Ct. 2198; see United States v. Zyskind, 118 F.3d 113, 118 (2d Cir.1997); United States v. Bilzerian, 926 F.2d 1285, 1300 (2d Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 39 (1991). Kim has not shown discrimination here. Thus, while the government could have elected to prosecute Kim under § 1324a, the fact that it chose to pursue him under § 1324 provides him no basis for complaint. B. “Harboring” Kim also contends that, even if he could be prosecuted under § 1324, the conduct that was proven at trial was insufficient to constitute harboring. We disagree. As discussed in Part II.A. above, harboring, within the meaning of § 1324, encompasses conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence, see, e.g., United States v. Lopez, 521 F.2d at 440-41. Such facilitation may be attempted through a wide range of conduct. In Lopez, we noted a number of such acts, including providing unlawful aliens with housing, transportation, and sham marriage ceremonies, and assisting them in obtaining employment. In United States v. Smith, 112 F.2d 83, 84 (2d Cir.1940), we upheld the conviction of an employer under a 1917 precursor to § 1324, see 8 U.S.C. § 144 (1940) (reaching “[a]ny person ... who ... shall conceal or harbor or attempt to conceal or harbor ... any [illegal] alien”), where the defendant had instructed undocumented aliens that, if questioned, they should deny that they were aliens and say that they were from New York State. We concluded that this constituted “harborfing],” for the employees were thus “sheltered from the immigration authorities and shielded from observation to prevent their discovery as aliens.” 112 F.2d at 85. See also United States v. Herrera, 584 F.2d 1137, 1145 (2d Cir.1978) (installation of security systems designed to alert illegal aliens to impending INS on-site inspections and" }, { "docid": "10745906", "title": "", "text": "aliens to remain in (as opposed merely to enter into) the country illegally. Cantu did not address the extent to which that conduct tended to facilitate the aliens’ remaining in the country illegally. Nevertheless, the Second and Fifth Circuits, as well as several other courts of appeals subsequently have employed “conduct tending substantially” in analyzing § 1324(a)(1)(A)(iii), explicitly stating or implicitly suggesting that language is a separate element necessary for conviction under the statute. See, e.g., United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir.2008); United States v. Tipton, 518 F.3d 591, 595 (8th Cir.2008); United States v. DeJesus-Batres, 410 F.3d 154, 160 (5th Cir.2005); United States v. Kim, 193 F.3d 567, 574 (2d Cir.1999). In our opinion, however, that phrase should not be adopted in this Circuit. Neither “conduct tending substantially” nor any similar wording appears in the text of the current statute or its previous versions, nor is it even mentioned in the legislative history, where we retreat only when there is a gap in the law. Rather, it is merely a judicial addition to the statute. Section 1324(a)(1) (A) (iii) provides that when a person “conceals, harbors, or shields from detection” an illegal alien (or attempts to do the same), he has committed a felony. Whether that conduct “tends substantially” to assist an alien is irrelevant, for the statute requires no specific quantum or degree of assistance. Congress could not have been clearer: it said that concealing, harboring, or shielding from detection an alien is unlawful conduct, regardless of how effective a defendant’s efforts to help the alien might tend to be. If a person commits a relatively nominal act that is proscribed by § 1324(a)(1)(A)(iii), the executive branch has the discretion to forego prosecution. Courts’ overlaying the statute with the “tending substantially” veneer appropriates that discretion and also invades the province of Congress by de-criminalizing lesser forms of conduct — i.e., actions that only “tend slightly or moderately” to help an alien. The Ozcelik case is illustrative of the imprudence of adopting the “conduct tending substantially” standard. 527 F.3d 88. There, the defendant had been" }, { "docid": "22260603", "title": "", "text": "the illegal aliens with social security numbers and names; this employer allegedly did. Moreover, the Khanani opinion did not consider the way that § 1324(a)(i)(A)(iii) had been revised over the years. The statutory evolution of § 1324(a)(i)(A)(iii) indicates that knowingly or recklessly hiring illegal aliens probably is enough by itself to constitute concealing, harboring, or shielding from detection for purposes of the statute. See United States v. Kim, 193 F.3d 567, 573-74 (2d Cir.1999) (explaining the evolution of this provision); see also Zheng, 306 F.3d at 1085 (citing Kim with approval). Section 1324(a) was enacted in 1952 and remained unchanged until 1986. The current version of § 1324(a)(1)(A)(iii) is nearly identical to the pre-1986 version, which provided that a person who “willfully or knowingly conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection [an illegal alien], in any place, including any building or any means of transportation,” is guilty of a felony. 8 U.S.C. § 1324(a)(3) (1982); see also 8 U.S.C.A. § 1324 note (West 2006). However, there is one important difference for our purposes. The pre-1986 version of § 1324(a) had also stated: “Provided, however, [t]hat for the purposes of this section, employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.” 8 U.S.C. § 1324(a) (1982) (emphasis added). Significantly, Congress removed that exception when it revised the statute in 1986. See The Immigration Reform and Control Act of 1986, Pub.L. No. 99-603, § 112(a), 100 Stat. 3359, 3381-82 (1986). The Second Circuit pointed out that “after the 1986 amendment, § 1324 no longer excluded employment from the prohibition against harboring.” Kim, 193 F.3d at 574. That observation led that court to conclude that “[t]he present version of § 1324, which is sufficiently broad on its face to encompass the knowing or reckless harboring of illegal aliens by employers, was plainly intended to have that breadth.” Id. We tend to agree with the Second Circuit that the revision history of § 1324(a)(l)(A)(iii) strongly indicates that one who hires an alien knowing or recklessly disregarding his illegal" }, { "docid": "14505056", "title": "", "text": "1324(a)(l)(A)(iii) a person is criminally liable if she, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation. We first addressed the question of what conduct constitutes the crime of harboring in United States v. Ozcelik, 527 F.3d 88 (3d Cir.2008). In that case, Hakan Ozcelik was charged with harboring after he gave general advice to “stay low” to an individual whom he knew to be in the United States illegally. Ozcelik, 527 F.3d at 97. We reversed Ozcelik’s harboring conviction, holding that “the terms ‘shielding,’ ‘harboring,’ and ‘concealing’ under § 1324 encompass conduct ‘tending to substantially facilitate an alien’s remaining in the United States illegally’ and to prevent government authorities from detecting the alien’s unlawful presence.” Id. (quoting United States v. Rubio-Gonzalez, 674 F.2d 1067, 1073 (5th Cir.1982)). We added that “[h]olding Ozcelik criminally responsible for passing along general information to an illegal alien would effectively write the word ‘substantially’ out of the test we have undertaken to apply.” Id. at 101. We have since reaffirmed our commitment to the test laid out in Ozcelik. See United States v. Cuevas-Reyes, 572 F.3d 119 (3d Cir.2009); United States v. Silveus, 542 F.3d 993, 1003 (3d Cir.2008) (noting that “cohabitation with [an alien lacking lawful immigration status], taken alone, does not constitute ‘harboring’ within the meaning of the statute”). Moreover, in Lozano v. City of Hazleton, we specifically noted that “harboring” requires some act of obstruction that reduces the likelihood the government will discover the alien’s presence. It is highly unlikely that a landlord’s renting of an apartment to an alien lacking lawful immigration status could ever, without more, satisfy this definition of harboring. Renting an apartment in the normal course of business is not in and of itself conduct that prevents the government from detecting an alien’s presence. Lozano v. City of Hazleton, 620 F.3d 170, 223" }, { "docid": "11124326", "title": "", "text": "law because they define “harboring” to include simple landlord-tenant relationships. Although the Supreme Court has yet to define “harboring” as that term is used in 8 U.S.C. § 1324(a)(l)(A)(iii), we have found that culpability requires some act of concealment from authorities. See Lozano II, 620 F.3d at 223. “We ... define ‘harboring’ as conduct ‘tending to substantially facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting the alien’s unlawful presence. ” Id. (quoting United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir.2008) (emphasis added)); see also United States v. Kim, 193 F.3d 567, 574 (2d Cir.1999) (Harboring “encompasses conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.”). Renting an apartment in the normal course of business is not, without more, conduct that prevents the government from detecting an alien’s unlawful presence. Thus, it is highly unlikely that renting an apartment to an unauthorized alien would be sufficient to constitute harboring in violation of the INA. The City also argues that Whiting held that a verification under 8 U.S.C. § 1373(c) is an accurate assessment of an alien’s immigration status and a sufficient basis for state or local action with respect to that alien. The City overlooks, however, that the state or locality must first have authority to take the underlying action with respect to an alien. Only then is verification under 8 U.S.C. § 1373(c) relevant to support permissible state or local action. Because the Whiting plurality held that Arizona’s employer sanctions law was a valid licensing law not pre-empted by IRCA, it followed that a federal verification of immigration status is a proper basis upon which Arizona may impose its licensing sanctions. That is not the case with respect to the housing provisions in Hazleton’s ordinances. As we have explained, the housing provisions are themselves pre-empted. It is therefore irrelevant that they would be imposed pursuant to a valid status verification under § 1373(c). Hazleton simply does not have the legal authority to take that action even" }, { "docid": "14997135", "title": "", "text": "found that culpability requires some conduct that helps to conceal an alien from authorities. We, along with the Court of Appeals for the Second Circuit, define “harboring” as conduct “tending to substantially facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting the alien’s unlawful presence.” United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir.2008) (internal quotation marks omitted) (emphasis added); see also United States v. Kim, 193 F.3d 567, 574 (2d Cir.1999) (Harboring “encompasses conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.”) (emphasis added). Thus, we have held that “harboring” requires some act of obstruction that reduces the likelihood the government will discover the alien’s presence. It is highly unlikely that a landlord’s renting of an apartment to an alien lacking lawful immigration status could ever, without more, satisfy this definition of harboring. Renting an apartment in the normal course of business is not in and of itself conduct that prevents the government from detecting an alien’s presence. It is true that other Courts of Appeals have held that a showing of concealment is unnecessary, and that conduct which merely “substantially facilitates an alien’s remaining in the country illegally” is sufficient to constitute harboring. See, e.g., United States v. Tipton, 518 F.3d 591, 595 (8th Cir.2008) (internal alteration omitted). However, even under the more lenient tests of these jurisdictions, we are not aware of any case in which someone has been convicted of “harboring” merely because s/he rented an apartment to someone s/he knew (or had reason to know) was not legally in the United States. Notably, all the cases cited by Hazleton for that proposition involve defendants who played a much more active role in helping an alien remain in the United States. See, e.g., Tipton, 518 F.3d at 595 (defendant employer who employed and housed six unauthorized alien employees, provided them with transportation and money to purchase necessities, and maintained counterfeit immigration papers for them guilty of harboring); United States v. Zheng, 306 F.3d 1080," }, { "docid": "10745905", "title": "", "text": "Circuit was defining the statutory term “harboring.” 521 F.2d at 440-41. With that language, the Lopez court rejected the defendant’s argument that under § 1324 the government had to prove his assistance to aliens was part of the smuggling process, i.e., connected to the aliens’ illegal entries into the country. Id. at 439. Rather, the Second Circuit held that, in using the word “harbor,” Congress intended to “encompass conduct tending substantially to facilitate an alien’s ‘remaining in the United States illegally.’ ” Id. at 441 (emphasis added). Hence, the Lopez court’s principal point was that the proscriptive reach of “harbor” is not limit ed to conduct related to the entry of aliens into the country. In Cantu, the Fifth Circuit quoted the “tending substantially” language from Lopez, though it did so only to reject the defendant’s argument (similar to the defendant’s argument in Lopez) that “shield from detection” only prohibits smuggling-related shielding activity. 557 F.2d at 1180. As with the court in Lopez, the Cantu court’s point was that § 1324 prohibits a defendant’s helping aliens to remain in (as opposed merely to enter into) the country illegally. Cantu did not address the extent to which that conduct tended to facilitate the aliens’ remaining in the country illegally. Nevertheless, the Second and Fifth Circuits, as well as several other courts of appeals subsequently have employed “conduct tending substantially” in analyzing § 1324(a)(1)(A)(iii), explicitly stating or implicitly suggesting that language is a separate element necessary for conviction under the statute. See, e.g., United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir.2008); United States v. Tipton, 518 F.3d 591, 595 (8th Cir.2008); United States v. DeJesus-Batres, 410 F.3d 154, 160 (5th Cir.2005); United States v. Kim, 193 F.3d 567, 574 (2d Cir.1999). In our opinion, however, that phrase should not be adopted in this Circuit. Neither “conduct tending substantially” nor any similar wording appears in the text of the current statute or its previous versions, nor is it even mentioned in the legislative history, where we retreat only when there is a gap in the law. Rather, it is merely a" }, { "docid": "14295136", "title": "", "text": "jury to convict him merely on the basis of reckless disregard, rather than actual knowledge, of his alien employees’ illegal status. We have considered these contentions and have found them meritless. They do not warrant discussion. A. Applicability, of § 182k to Employers Section 1324 of Title 8 of the United States Code, entitled “Bringing in and harboring certain aliens,” prescribes a prison term of up to five years and/or a fine in accordance with Title 18 of the Code, see 18 U.S.C. § 3571(b)(3) (1994) (for an individual convicted of a felony, up to $250,000), for “[a]ny person” who, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien. 8 U.S.C. § 1324(a)(i)(A)(iii) (1994); see also id. § 1324(a)(1)(B)(i) (Supp. III 1997) (effective September 30, 1996, increasing to 10 years the maximum prison term if the harboring in violation of § 1324(a)(i)(A)(iii) was “done for the purpose of commercial advantage or private financial gain”). Where there is such knowledge or reckless disregard of the alien’s unlawful status, § 1324(a)(i)(A)(iii) encompasses a defendant’s “conduct tending substantially to facilitate [the] alien’s remaining in the United States illegally.” United States v. Lopez, 521 F.2d 437, 441 (2d Cir.) (internal quotation marks omitted) (construing predecessor section, see 8 U.S.C. § 1324(a)(3) (1970) (reaching any person who “willfully or knowingly conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection ... any [illegal] alien”)), cert. denied, 423 U.S, 995, 96 S.Ct. 421, 46 L.Ed.2d 368 (1975). In Lopez, we concluded that the defendant’s conduct, which included providing illegal aliens with housing, transportation, and sham marriage ceremonies, and assisting them in obtaining employment, was meant to “facilitate the continued unlawful presence of the aliens in the United States, which amounts to harboring.” 521 F.2d at 441. Section 1324a of Title 8, which Kim contends is the only section under which he could properly be prosecuted, is entitled “Unlawful" }, { "docid": "8777318", "title": "", "text": "illegal alien to enter [Alabama] from another state.” GLAHR, 793 F.Supp.2d at 1334, 2011 WL 2520752 at *13. Second, Section 13(a)(3) permits Alabama to criminally punish an unlawfully-present alien for furthering his or her own unlawful presence by providing that “[conspiracy to be so transported shall be a violation” of Section 13(a)(3). By contrast, the corresponding federal provision in 8 U.S.C. § 1324(a)(1)(A)(ii) has no such “[conspiracy” provision and does not extend to the smuggled or transported alien. See United States v. Hernandez-Rodriguez, 975 F.2d 622, 626 (9th Cir.1992)(recognizing that unlawfully-present aliens who are transported “are not criminally responsible for smuggling under 8 U.S.C. § 1324”). Third, Section 13(a)(4) reaches beyond the provisions of the Georgia harboring law by criminalizing the “entering into a rental agreement, as defined by Section 35-9A-141 of the Code of Alabama 1975, with an alien to provide accommodations.” H.B. 56 § 13(a)(4). By contrast, nothing in 8 U.S.C. § 1324 or any other federal immigration law criminalizes such rental agreements. The State Defendants contend that Section 13(a)(4) “prohibits a type of ‘harboring’ that is equally prohibited by federal law.” (Doc. 69 at 45 [citing 8 U.S.C. § 1324(a)(1)(A)(iii) ].) Neither Congress nor the Supreme Court has defined the term “harboring.” However, the Circuit Courts of Appeal have consistently defined “harboring” as facilitating the alien remaining unlawfully in the United States. See, e.g., United States v. Kim, 193 F.3d 567, 574 (2d Cir.1999)(holding that harboring “encompasses conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.”); United States v. Cantu, 557 F.2d 1173 (5th Cir.1977). In Cantu, the former Fifth Circuit held that Section 1324 prohibits conduct “tending substantially to facilitate an alien’s remaining in the United States illegally.” Cantu, 557 F.2d at 1180 (citation omitted). It does not appear the Eleventh Circuit has altered this standard in the years following Cantu. See, e.g., Edwards v. Prime, Inc., 602 F.3d 1276, 1299 (11th Cir.2010); Zheng, 306 F.3d at 1086 (referring to harboring in the general sense of facilitating an alien’s presence in the" }, { "docid": "14295137", "title": "", "text": "was “done for the purpose of commercial advantage or private financial gain”). Where there is such knowledge or reckless disregard of the alien’s unlawful status, § 1324(a)(i)(A)(iii) encompasses a defendant’s “conduct tending substantially to facilitate [the] alien’s remaining in the United States illegally.” United States v. Lopez, 521 F.2d 437, 441 (2d Cir.) (internal quotation marks omitted) (construing predecessor section, see 8 U.S.C. § 1324(a)(3) (1970) (reaching any person who “willfully or knowingly conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection ... any [illegal] alien”)), cert. denied, 423 U.S, 995, 96 S.Ct. 421, 46 L.Ed.2d 368 (1975). In Lopez, we concluded that the defendant’s conduct, which included providing illegal aliens with housing, transportation, and sham marriage ceremonies, and assisting them in obtaining employment, was meant to “facilitate the continued unlawful presence of the aliens in the United States, which amounts to harboring.” 521 F.2d at 441. Section 1324a of Title 8, which Kim contends is the only section under which he could properly be prosecuted, is entitled “Unlawful employment of aliens.” Section 1324a imposes on an employer the obligations to refrain from knowingly employing an alien who is unauthorized to work in the United States, see 8 U.S.C. § 1324a(a), and to verify, under penalty of perjury, that before hiring a given individual the employer examined identification documents such as a passport or resident alien card and concluded that those documents reasonably appeared to be genuine, see id. § 1324a(b)(1). Section 1324a authorizes the government to, inter alia, prosecute employers who have engaged in a pattern or practice of such violations; the criminal sanctions prescribed by § 1324a, other than injunctions, are limited to fines of up to $3,000 per alien and/or imprisonment for not more than six months for the entire unlawful pattern or practice. See id. § 1324a(f). Although Kim contends that, as an employer, he could properly be prosecuted only under § 1324a and hence subject only to the lesser penalties prescribed by that section rather than those found in § 1324, we reject his contention for two principal reasons." } ]

[ { "docid": "22445688", "title": "", "text": "We review a district court’s decision concerning an acceptance-of-responsibility adjustment for clear error. United States v. May, 359 F.3d 683, 688 (4th Cir.2004). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). We must give “great deference” to the district court’s decision because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n. 5. The sentencing judge is in the best position “to evaluate the defendant’s acts and statements to determine whether the defendant has accepted responsibility for his or her criminal conduct.” United States v. Kise, 369 F.3d 766, 771 (4th Cir.2004). Without any evidence compelling us to conclude that the district court has committed clear error in its evaluation of the defendant, we will uphold its decision on the § 3E1.1 reduction. The sentencing guidelines allow a district court to reduce the defendant’s offense level by two if “the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). The commentary to the guidelines provides district courts with several factors to consider when evaluating whether a defendant has clearly demonstrated acceptance of responsibility. The factors relevant to the consideration of Dugger’s claim are: (a) truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct); (b) voluntary termination or withdrawal from criminal conduct or associations; (d) voluntary surrender to authorities promptly after the commission of the offense; ... (g) post-offense rehabilitative efforts; (h) timeliness of the defendant’s conduct in manifesting the acceptance of responsibility. U.S.S.G. § 3E1.1 cmt. n. 1. To earn the reduction, a defendant must prove to the court by a preponderance of the evidence “that he has clearly recognized and affirmatively accepted personal responsibility for his criminal conduct.” United States v." } ]

[ { "docid": "17475859", "title": "", "text": "than a minor participant). B. Nor did the district court commit clear error in denying Mahan's request for an offense level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, despite the fact that Mahan admitted his conduct in copying the flyers. A defendant is entitled to a two-level reduction in sentence only if he \"clearly demonstrates acceptance of responsibility for his offense.\" U.S.S.G. § 3E1.1(a). \"The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.\" U.S.S.G. § 3E1.1 comment. (n.5). We believe that Mahan is not entitled to an “acceptance of responsibility” reduction where he pleaded not guilty before the district court, was found guilty only after a jury trial, and on appeal continues to downplay his participation in the conspiracy to intimidate the family into fleeing their home. “Although the guidelines permit a defendant to receive credit under § 3El.l(a) even if he goes to trial, the reduction is ‘not intended for a defendant who puts the government to its burden of proof at trial by denying the factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.’ ” United States v. Hill, 167 F.3d 1055, 1071 (6th Cir.1999) (quoting U.S.S.G. § 3E1.1 comment, (n. 2)). This commentary provides that while conviction by trial does not automatically preclude an acceptance of responsibility reduction, an adjustment in such a case is to be rare, and is conceivable primarily in a situation in which a defendant admits his factual guilt but goes to trial to test the constitutionality or applicability of the governing criminal statute. U.S.S.G. § 3E1.1, comment, (n. 2). That is not the case here. Mahan did not go to trial simply to test the constitutionality or applicability of the civil rights laws under which he was convicted. Instead, he steadfastly contested his factual guilt, claiming that he duplicated the flyers without any specific knowledge that they would be scattered on the family’s lawn and without any intent to do harm. Ma-han" }, { "docid": "20308945", "title": "", "text": "(8th Cir.2011). Clear error exists when the court is left “with the definite and firm conviction that a mistake has been committed.” United States v. Lalley, 257 F.3d 751, 758 (8th Cir.2001) (quotation and citation omitted). The defendant bears the burden of proving he deserves a reduction, United States v. Fischer, 551 F.3d 751, 754 (8th Cir.2008) (quotation and citation omitted), and a guilty plea does not guarantee he will receive one. U.S.S.G. § 3E1.1 cmt. n. 3; United States v. Cahania, 532 F.3d 764, 772-73 (8th Cir.2008). “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of. the sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1 cmt. n. 5. At the outset, we observe Adetiloye misunderstands the source of the offense level reduction. The district court provided no acceptance of responsibility ’reduction whatsoever. Sent. Tr. 610 (“The Court is strongly convinced that the defendant is not entitled to acceptance of responsibility given the way that this matter played out and given the proof that the government was put to.”). Instead, the court granted Adetiloye a one-level downward -variance for pleading guilty and thereby saving the government the cost of trying the case. Id. Accordingly, we review the district court’s denial of any reduction for acceptance of. responsibility, rather than granting solely the one-level reduction that Ade-tiloye claims. Section-3El.l provides, “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.” “[A] defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n. 1(A). The district court denied the reduction because Adetiloye contested factual statements and nearly all applicable enhancements in the Presentence Investigation Report (PSR). We agree. After pleading guilty, Adeti-loye continued to deny, among other things, that (1) his was the voice on the recorded phone calls to banks; (2) he continued to engage in the scheme after being arrested by Canadian police in December 2007;" }, { "docid": "22097602", "title": "", "text": "omitted)); United States v. Ruhe, 191 F.3d 376, 388 (4th Cir.1999) (“[A]s a simple panel, we are bound by prior precedent from other panels in this circuit absent contrary law from an en banc or Supreme Court decision.”). Accordingly, we conclude that the district court properly rejected Jeffery’s argument that the government was required to prove that he knew the fuel belonged to the Army. See Bauer, 713 F.2d at 73 n. 4 (“Knowledge that stolen property belonged to the government is not an element of the [§ 641] offense.” (internal quotation marks omitted)); see also United States v. Rehak, 589 F.3d 965, 974-75 (8th Cir.2009) (rejecting argument that Flores-Figueroa effectively overruled the caselaw holding that § 641 does not require the government to prove that the defendant knew the stolen property was owned by the government), cert. denied, - U.S. -, 130 S.Ct. 2130, 176 L.Ed.2d 727 (2010). IV. We turn now to Jeffery’s challenges to his sentence. Jeffery first contends that even though he went to trial, the district court should have awarded him a two-level acceptance-of-responsibility reduction. We disagree. A reduction for acceptance of responsibility is appropriate for a defendant who “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). Although the reduction “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt,” going to trial does not “automatically preclude” the adjustment. Id. at cmt. n. 2. In “rare situations,” such as when the “defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct),” an adjustment may still be appropriate. Id. ■ Jeffery argues that he was entitled to the reduction because he went to trial only “to test the applicability of 18 U.S.C. § 641 to his conduct, that is, hoping to prevail on the question of whether knowledge of government property is" }, { "docid": "18895318", "title": "", "text": "failing to provide required information on bankruptcy documents, the element of planning was rather sophisticated. In a three year period, defendant entered into two lease/purchase agreements, defaulted on obligations and filed several fraudulent bankruptcies, three of which he was indicted for. The fact that defendant’s behavior was repeated and involved an extended period of time implicates appellant’s scheme as involving more than minimal planning. U.S.S.G. § 1B1.1, comment (n. 1(f)). Defendant’s conduct rose to a level beyond minimal planning and the district court’s two level enhancement will not be disturbed. 5. Should the district court have applied a two point reduction under the Sentencing Guidelines § 3E 1.1 for acceptance of responsibility? Appellant contends that he was entitled to a two-point reduction in offense level for accepting responsibility for his crimes. The district court’s refusal to grant the reduction was based upon its determination that appellant had not accepted responsibility. We review that determination for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir.1990). Because the sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility, the determination of the sentencing judge is entitled to great deference on review. U.S.S.G. § 3E1.1, comment (n. 5). U.S.S.G. § 3El.l(a) governs reductions for acceptance of responsibility: “If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels.” The guidelines specifically acknowledge that this adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of gufit, is convicted, and only then admits guilt and expresses remorse. U.S.S.G. § 3E1.1, comment (n. 2). At trial appellant attempted to fix blame on the victims he defrauded. Moreover, the central issue of appellant’s guilt was over his fraudulent intent — a factual matter. See United States v. Barron-Rivera, 922 F.2d 549 (9th Cir.1991). In deciding against granting a reduction for acceptance of responsibility, the district judge commented: “you really feel that you are innocent of the charges although you’ve been" }, { "docid": "16253083", "title": "", "text": "C. Harbin’s Acceptance of Responsibility After his first conviction was overturned on appeal, Harbin entered a plea agreement with the government rather than face retrial. The government made the agreement contingent on Hicks and Tyler also entering into plea agreements. When they refused to do so, the government moved to withdraw Harbin’s agreement. Harbin objected, but the court upheld the terms of the agreement and granted the government’s motion because the Hicks/Tyler contingency had not been met. Harbin then proceeded to trial alongside his co-defendants Hicks and Tyler. At sentencing, Harbin argued that he was entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 because of his demonstrated intent prior to trial to. enter into a plea agreement with the government. The district court disagreed and refused to give the requested adjustment. We review the district court’s fact-based decision not to grant an acceptance of responsibility reduction for clear error. United States v. Williams, 202 F.3d 959, 961 (7th Cir.2000). “We give great deference to the district court’s conclusion in this matter as that court is in a unique position to assess the defendant’s motives and genuineness in professing to accept responsibility for his crime.” Id. The district court decided not to give Harbin the acceptance of responsibility adjustment because he put the government to its burden of proof at trial. The Sentencing Guidelines commentary specifically supports this conclusion. See U.S.S.G. § 3E1.1 cmt., n. 2 (“[The acceptance of responsibility] adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt .... ”); see also Williams, 202 F.3d at 962 (“Ordinarily a defendant who chooses to go to trial and force the government to prove his guilt is not eligible to receive a sentence reduction for acceptance of responsibility.”). Harbin, though, alleges that at trial he sought only to challenge the amount of crack attributable to him, not his underlying guilt of the conspiracy charge. He reasons that under this view of his defense, his conduct at trial falls" }, { "docid": "16771185", "title": "", "text": "may not prove true in every case, it is certainly rational, and we see nothing in either the language of the guideline nor its underlying principles that suggests that the defendant’s subjective state of mind is in any way relevant to the guideline’s application. III. Muhammad also challenges the district court’s refusal to award him a reduction in his sentence based on acceptance of responsibility. Under the sentencing guidelines, a defendant is entitled to a two-level reduction to his calculated offense level if he “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). We review a district court’s factual determination with respect to acceptance of responsibility under a clearly erroneous standard. See United States v. Ceccarani, 98 F.3d 126, 129 (3d Cir.1996); see also U.S.S.G. § 3E1.1 cmt. 5 (“The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.”). The defendant bears the burden of establishing by a preponderance of the evidence that he is entitled to the sentence reduction. See United States v. Rodriguez, 975 F.2d 999, 1008 (3d Cir.1992). The reduction for acceptance of responsibility generally does not apply to a defendant “who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, cmt. 2. However, in “rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial.” Id. Such a situation may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt {e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. Id. The district court based its decision to deny Muhammad the reduction on" }, { "docid": "5620774", "title": "", "text": "defendant’s appeal may draw a guidelines cross-appeal when the government would [probably] not ... appeal on its own in the first instance.” United States v. Bradley, 165 F.3d 594, 595 (7th Cir.1999). See also United States v. Martinson, 37 F.3d 353 (7th Cir.1994) (affirming conviction but finding clear error in reduction of offense level for acceptance of responsibility). While we find no merit in Szarwark’s appeal, we agree with the government’s contention on cross-appeal that Szarwark was not entitled to any sentence reduction for acceptance of responsibility. We review a district court’s determination of acceptance of responsibility for clear error, bearing in mind the Guidelines’ directive that “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility,” and that, consequently, “the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1, Application Note 5. Even under this deferential standard, however, Szarwark’s sentence reduction cannot stand. The Sentencing Guidelines provide that a defendant who “clearly demonstrates acceptance of responsibility for his offense,” is entitled to a two level reduction. U.S.S.G. § 3El.l(a). In order to receive this reduction, it is normally necessary, (although not sufficient) for the defendant to plead guilty. United States v. Cunningham, 103 F.3d 596, 598 (7th Cir.1996); United States v. Beserra, 967 F.2d 254, 255 (7th Cir.1992). See also U.S.S.G. § 3E1.1, Application Note 3. This bias in favor of guilty pleas arises from the Guidelines’ admonition that an acceptance of responsibility reduction “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt.” Id., Application Note 2. See also Cunningham, 103 F.3d at 598 (“[T]he [acceptance of responsibility] provision is designed in part to help the government and the judiciary avoid the time and expense of trial.”); Beserra, 967 F.2d at 256 (“The framers of the sentencing guidelines ... wanted to encourage the guilty to plead guilty in order to save the government and the judiciary the costs of trial”). Consistent with this policy, however, a defendant may, in “rare" }, { "docid": "2436778", "title": "", "text": "level for acceptance of responsibility for his criminal conduct as allowed under U.S.S.G. § 3E1.1. This decision is one of fact, particularly suited for the district court to make, and will not be disturbed unless clearly erroneous. United States v. Osmani, 20 F.3d 266, 269 (7th Cir.1994); United States v. Fuller, 15 F.3d 646, 650 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 2689, 129 L.Ed.2d 820 (1994). See also U.S.S.G. § 3E1.1 cmt., n. 5 (“The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on appeal.”). Acceptance of responsibility simply means “the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3El.l(a). An oft-recited application note to § 3E1.1 reminds defendants of the central purpose of the acceptance of responsibility reduction: “This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1 cmt., n. 2. The sum total of Glorioso’s acceptance of responsibility consists of his confession, following conviction and in ■ preparation of sentencing, of his criminal conduct. Not until trial was complete and an unfavorable verdict returned did Glorioso admit his crimes and express any, albeit a paltry, sense of remorse for his acts. Awarding the two-level reduction for this would be contrary to the basic system of incentives and disincentives established by the acceptance of responsibility reduction, namely to reward those who plead guilty — saving the judiciary and Government from the time, expense and effort of a trial — or who take “some other equivalently concrete act, such as pretrial payment of full restitution.” United States v. Gomez, 24 F.3d 924, 926 (7th Cir.1994); United States v. Beserra, 967 F.2d 254, 255 (7th Cir.), cert. denied, — U.S. ——, 113 S.Ct. 419, 121 L.Ed.2d 341 (1992) (“A plea of guilty is (normally) a necessary, but" }, { "docid": "15998111", "title": "", "text": "presented expert testimony to show that downloaded images depicted real children, the Fifth Circuit squarely rejected the argument that the Government failed to meet its burden of proof to establish that the images depicted real children. United States v. Slanina, 359 F.3d 356, 357 (5th Cir.2004) (per curiam). Relying on Kimler and other cases, the Fifth Circuit held that the “Government was not required to present any additional evidence or expert testimony to meet the burden of proof to show that the images downloaded by Slanina depicted real children” and that the trier of fact “was capable of reviewing the evidence to determine whether the Government met its burden to show that the images depicted real children.” Id. Accepting the reasoning of the Fifth, Eighth, and Tenth Circuits, we conclude that the Government in this case provided sufficient evidence that the images were of actual children. Accordingly, there was sufficient evidence to convict Farrelly. III. Sentence A. Acceptance of Responsibility The district court did not clearly err by denying Farrelly a reduction for acceptance of responsibility. “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility[,] ... the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1, cmt. n. 5. Thus, “[t]he district court’s determination regarding acceptance of responsibility must be sustained unless clearly erroneous.” United States v. Angel, 355 F.3d 462, 476 (6th Cir.2004). “To qualify for this reduction, Defendants [are] required to show by a preponderance of the evidence that they had accepted responsibility for the crime committed.” United States v. Thomas, 74 F.3d 701, 716 (6th Cir.1996). A defendant may receive a reduction for acceptance of responsibility pursuant to § 3E1.1, if he can “clearly demonstrate[] acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1. “This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” Id. at cmt. n.2. The Guidelines do recognize an exception to this" }, { "docid": "9677611", "title": "", "text": "to apply any enhancements or departures. However, our review of the record convinces us that the district court did not abuse its discretion in refusing to conduct an evidentiary hearing at sentencing. The court did consider a report prepared by one of the government’s experts, and concluded on that basis that the defendant was more likely than not a predatory pedophile. Surratt, 867 F.Supp. at 1324. Despite that conclusion, the court simply decided that it was not necessary to hear further evidence and that the sentence imposed adequately addressed the government’s concerns about recidivism. Id. We find that the government was given an “adequate opportunity” to present evidence on the disputed factors. IV. Finally, we consider the government’s challenge to the district court’s two-level decrease in Surratt’s offense level for acceptance of responsibility. The determination of whether a defendant has accepted responsibility is a factual question which should be accorded great deference and should not be disturbed unless clearly erroneous. United States v. Williams, 940 F.2d 176, 181 (6th Cir.), cert. denied, 502 U.S. 1016, 112 S.Ct. 666, 116 L.Ed.2d 757 (1991); see also U.S.S.G. § 3E1.1, cmt. (n.5) (1993) (“The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility.”). The sentencing guidelines provide that a defendant is entitled to a two-level reduction “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). The defendant bears the burden of showing by a preponderance of the evidence that the reduction is justified. Williams, 940 F.2d at 181. A defendant who pleads guilty is not entitled to a reduction as a matter of right. United States v. Mahaffey, 53 F.3d 128, 134 (6th Cir.1995); U.S.S.G. § 3E1.1, cmt. (n.3). However, the “[e]ntry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under § IB 1.3 (Relevant Conduct) ..., will constitute significant evidence of acceptance of responsibility____” U.S.S.G. § 3E1.1, cmt. (n.3). The government apparently" }, { "docid": "14493288", "title": "", "text": "reduction for acceptance of responsibility is a question of fact that we review under the clearly erroneous standard.”); accord United States v. Hamilton, 413 F.3d 1138, 1145 (10th Cir.2005); cf. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (‘Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”). Because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility[,] ... [his] determination ... is entitled to great deference on review.” United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (quoting U.S.S.G. § 3E1.1 cmt. n. 5) (internal quotation marks omitted); accord United States v. Day, 223 F.3d 1225, 1231 (10th Cir.2000); cf. United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (discussing the deferential abuse-of-discretion standard and stating that “there are perhaps few arenas where the range of rationally permissible choices is as large as it is in sentencing”). Some appropriate considerations in making this determination include: (1) whether the defendant truthfully admitted the conduct underlying his offense; (2) whether he fully terminated his criminal conduct; and (3) the timeliness of his admissions, if any. See U.S.S.G. § 3E1.1 cmt. n. 1. The aceeptance-of-responsibility adjustment “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt[] [and] is convicted.” Id. § 3E1.1 cmt. n. 2 (emphasis added). In support of his argument, Mr. McGehee relies heavily on our decision in United States v. Gauvin, 173 F.3d 798, 806 (10th Cir.1999), where we upheld the district court’s decision to apply the two-level acceptance-of-responsibility reduction because, despite deciding to go to trial, the defendant had essentially admitted to all of the conduct with which he was charged. Gauvin, however, is readily distinguishable. As a threshold matter, in Gauvin, we merely accorded the district court the requisite deference in upholding its decision to grant the two-level reduction. Id. We did not indicate that other sentencing courts would be obliged to reach" }, { "docid": "9890010", "title": "", "text": "a reduction in the offense level will not be overturned unless clearly erroneous.” E.g., United States v. Royer, 895 F.2d 28, 29 (1st Cir.1990); see also U.S.S.G. § 3E1.1 cmt. note 5 (“The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.”). Section 3E1.1 requires a defendant to “clearly” demonstrate acceptance of responsibility for his offense. Accordingly, “a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. note 1(a). Although a defendant who goes to trial may still qualify for acceptance of responsibility, such an occurrence is “rare.” Id. at cmt. note 2. The Guidelines explain: “This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1 cmt. note 2. Accordingly, “a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.” Id. ■ In this case, the record reflects that Rosario-Rodríguez made no pretrial statements accepting responsibility. Further, although appellant talked at length about his distribution of narcotics at his sentencing hearing, he did not accept responsibility for the murder of Muñoz-Candelaria. To the contrary, he stated: [T]he only reason I went to trial in this case was because I was being charged with the death of Richard Muñoz-Candelaria.... I would have accepted my responsibilities but I could never accept that I killed Richard Muñoz-Candelaria. I could never accept something that was not true. Based on these statements,' the district court correctly found: What I am saying is that the jury made a finding that, your client participated in the murder. There has been no admission. No acceptance of responsibility by your client as to that and that is at odds with the evidence at trial and the jury verdict." }, { "docid": "22167606", "title": "", "text": "is inadequate under Wacker. Therefore, in light of Wacker, we must decline to resolve the issues raised by the parties and remand the ease to the district court with directions to make specific findings indicating the factual basis for its conclusion Mr. Hickman was a “manager” within the meaning of U.S.S.G. § 3Bl.l(b). C. Acceptance of Responsibility Mr. Hickman contends the district court erred when it denied his request for a reduction in his offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. To receive such a reduction, the defendant must prove by a preponderance of the evidence that he has “clearly demonstrate[d] acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a); United States v. Portillo-Valenzuela, 20 F.3d 393, 394 (10th Cir.), cert. denied, — U.S. -, 115 S.Ct. 227, 130 L.Ed.2d 152 (1994). Whether the defendant has clearly demonstrated acceptance of responsibility is a factual question we review only for clear error, United States v. McCollom, 12 F.3d 968, 972 (10th Cir.1993), and doing so we remain mindful that “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1, comment, (n. 5). Mr. Hickman’s presentence report states that “[t]he adjustment for acceptance of responsibility is not available for this defendant, as he put the government to the burden of proving his guilt at trial.” Mr. Hickman objected to this statement on the ground that “the acceptance of responsibility reduction should not be automatically foreclosed by insisting upon a trial.” The Probation Department responded by citing, inter alia, U.S.S.G. § 3E1.1, comment, (n. 2), which provides: This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his" }, { "docid": "3596161", "title": "", "text": "S.Ct. 586, 169 L.Ed.2d 445 (2007) (observing that procedural error includes “failing to calculate (or improperly calculating) the Guidelines range”). Perry next contends that the district court erred when it denied his request for a two-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. “When reviewing the grant or denial of a reduction for acceptance of responsibility, we afford great deference to the determination of the district court judge, who is in a unique position to evaluate whether a defendant has accepted responsibility for his offense.” United States v. Gonzalez-Rodriguez, 239 F.3d 948, 954 (8th Cir.2001) (quoting United States v. Field, 110 F.3d 592, 594 (8th Cir.1997)). Thus, we review for clear error. Id. In the present case, Perry elected to proceed to trial. The commentary accompanying § 3E1.1 explains that the acceptance of responsibility “adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt.” § 3E1.1 cmt. n. 2. A defendant who has proceeded to trial may overcome this bar to a reduced sentence in the rare instance when the issues for trial did not relate to factual guilt. Id.; see also United States v. Chapman, 356 F.3d 843, 847-48 (8th Cir.2004). Perry’s case does not present such an instance; at trial, he cross-examined witnesses and moved for a judgment of acquittal on the ground that the Government failed to prove identity. See United States v. Bell, 411 F.3d 960, 963-64 (8th Cir.2005). Hence, the district court did not clearly err in refusing to grant a two-level reduction for acceptance of responsibility. III. CONCLUSION For the foregoing reasons, we vacate Perry’s sentence and remand to the district court for further proceedings not inconsistent with this opinion. . \"A 'proffer agreement' is generally understood to be an agreement between a defendant and the government in a criminal case that sets forth the terms under which the defendant will provide information to the government during an interview, commonly referred to as a 'proffer session.’ The proffer agreement defines the obligations of the" }, { "docid": "23093279", "title": "", "text": "life. In order to comply with § 5G1.2(d), the district court would have to reach the same 30-year prison term by sentencing Rosario to 20 years on one or more of the counts with a consecutive 10-year sentence on one or more of the other counts. Therefore, we find that the district court’s error did not seriously affect the fairness of the proceeding. See Martinez, 289 F.3d at 1027. Several other circuits have considered the same argument that Rosario makes today and have held, as we have, that there is no prejudice, and therefore no need to remand, when the application of consecutive sentences under § 5G1.2(d) would result in the same sentence that the defendant already received. Rosario’s Apprendi argument is rejected. F. Abraham Hernandez’s Acceptance of Responsibility Abraham Hernandez argues that the district court improperly denied his request for a two-level reduction for acceptance of responsibility under § 3E1.1 of the sentencing guidelines. To prevail on this point below, the burden was on Hernandez to “clearly demonstrate” that he was entitled to the reduction by a preponderance of the evidence. United States v. Muhammad, 120 F.3d 688, 701 (7th Cir.1997) (citing U.S.S.G. § 3El.l(a)). On appeal, we will reverse a district court’s refusal to grant an acceptanee-of-responsibility reduction only if we find that decision to be clearly erroneous. Id. (citations omitted). The commentary to guideline § 3E1.1 makes clear that the adjustment for acceptance of responsibility “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1 cmt. n. 2. Abraham Hernandez did not plead guilty in this case; rather he forced the government to go to trial to establish his guilt. There is some evidence that he entered into plea negotiations with the government about pleading guilty to Count 1 — the conspiracy charge — but nothing came of these negotiations because Abraham Hernandez would not accept the government’s conditions on the plea. Thus, they went to trial," }, { "docid": "13125153", "title": "", "text": "erred in denying Contreras’s request for a downward adjustment for acceptance of responsibility pursuant to § 3E1.1. Because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility,” we review with “great deference.” U.S.S.G. § 3E1.1, cmt. n. 5. We will reverse only if the district court’s findings are clearly erroneous and completely lack foundation. United States v. Greger, 339 F.3d 666, 672 (8th Cir.2003). Section 3El.l(a) provides for a two-level reduction in a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” The commentary to this guideline further provides: This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. U.S.S.G. § 3E1.1, cmt. n. 2. The jury convicted Contreras of three of the four charges against him. Contreras did not admit factual guilt to any of those charges and, instead, put the government to its burden on all counts. Although Contreras claims that he would have entered into a plea agreement if the government would have dismissed the Street Sweeper shotgun charge against him-the charge of which the jury ultimately found Contreras not guilty-this mere assertion, without more, is an insufficient ground for reversal. See United States v. Velez, 46 F.3d 688, 693-94 (7th Cir.1995) (affirming the district court’s refusal to grant" }, { "docid": "22897678", "title": "", "text": "categorically a crime of violence under the relevant definition provided in section 2L1.2 cmt. n. l(B)(iii) of the Sentencing Guidelines since that California conviction falls within the common sense definition of the enumerated offense of “aggravated assault” in its generic, contemporary meaning. We therefore affirm the district court’s application of a sixteen-level crime-of-violence enhancement. II. The Acceptance of Responsibility Reduction Sanchez-Ruedas also contends that the district court erred in denying him a two-level reduction for acceptance of responsibility. A district court’s determination as to whether a defendant has accepted responsibility is afforded great deference on review. United States v. Chapa-Garza, 62 F.3d 118, 122 (5th Cir. 1995) (citing United States v. Franks, 46 F.3d 402, 405 (5th Cir.1995)); U.S.G.G. § 3E1.1 n. 5. Indeed, the ruling “should not be disturbed unless it is without foundation.” United States v. Roberson, 872 F.2d 597, 610 (5th Cir.1989). Moreover, the defendant bears the burden of proving entitlement to a decrease in offense level for acceptance of responsibility. United States v. Tello, 9 F.3d 1119, 1124 (5th Cir.1993). The relevant sentencing guideline provision, section 3E1.1, provides for reduction of the offense level “if the defendant clearly demonstrates acceptance of responsibility for his offense.” The commentary to that section advises that “this adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3El.l(a) cmt. n. 2. This court has accordingly only reversed a district court’s denial of this award in cases where the defendant never contested factual guilt. See, e.g., United States v. Washington, 340 F.3d 222 (5th Cir.2003) (reversing where the defendant signed a confession and was attempting only to suppress evidence). In this case, Sanchez had a trial on the merits and a bite at the acquittal cherry. Moreover, he was warned by both the district court and his attorney that proceeding to trial would cost him the very reduction he now seeks on appeal. Because there is some foundation for the district" }, { "docid": "12382902", "title": "", "text": "drugs for each transaction, and then ensured the drugs, money, and participants arrived when and where needed. Imposing the organizer enhancement when a defendant has this level of involvement “reflects the greater culpability of the participant who arranges the transaction.” Varela, 993 F.2d at 691-92; see also Montano, 250 F.3d at 716. • As an organizer, Doe is ineligible for safety valve relief, pursuant to 18 U.S.C. § 3553(f)(4). We therefore also affirm the district court’s denial of relief under the safety valve. C Finally, we turn to Doe’s claim that the district court erred in denying him a two-level offense reduction for acceptance of responsibility. A defendant may receive at two-level offense reduction if he “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). The “adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse,” U.S.S.G. § 3E1.1 cmt. n.2, though going to trial does not necessarily preclude .the adjustment if the defendant asserts an incomplete, rather than complete, defense at trial, see United States v. Burrows, 36 F.3d 875, 883 (9th Cir.1994). The district court’s decision on this point is entitled to “great deference” because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n.5. The decision is “not to be disturbed ‘unless it is without foundation.’ ” United States v. Innie, 7 F.3d 840, 848 (9th Cir.1993) (quoting United States v. Aichele, 941 F.2d 761, 767 (9th Cir.1991)). At sentencing, the district court found that Doe’s testimony that he engaged in criminal conduct for the purpose of gaining information to give to the FBI was not believable, and that Doe was not truthful to the government or to the jury when he testified. Although Doe challenges this finding on the ground that he could subjectively believe that he was helping the FBI, even though the jury and judge decided that this belief was not reasonable, the district" }, { "docid": "9890009", "title": "", "text": "above, this argument is not subject to review. See Saldaña, 109 F.3d at 102 (“Under 18 U.S.C. § 3742(a), a defendant ... may not appeal from a sentence within the guideline range if there was no legal error and the only claim is that the district court acted unreasonably in declining to depart.”); Tucker, 892 F.2d at 10 (same). D.Acceptance of Responsibility In light of his allocution at the sentencing hearing, Rosario-Rodríguez argues that the trial court erred in declining to reduce his offense level for acceptance of responsibility pursuant to Sentencing Guidelines § 3E1.1(a). In this Circuit, “[a] defendant bears the burden of proving entitlement to decreases in the offense level, including downward adjustments for acceptance of responsibility.” United States v. Gonzales, 12 F.3d 298, 300 (1st Cir.1993); see also United States v. Morillo, 8 F.3d 864, 871 (1st Cir.1993); United States v. Bradley, 917 F.2d 601, 606 (1st Cir.1990). “Whether a defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility is a fact-dominated issue, and the district court’s decision to withhold a reduction in the offense level will not be overturned unless clearly erroneous.” E.g., United States v. Royer, 895 F.2d 28, 29 (1st Cir.1990); see also U.S.S.G. § 3E1.1 cmt. note 5 (“The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.”). Section 3E1.1 requires a defendant to “clearly” demonstrate acceptance of responsibility for his offense. Accordingly, “a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. note 1(a). Although a defendant who goes to trial may still qualify for acceptance of responsibility, such an occurrence is “rare.” Id. at cmt. note 2. The Guidelines explain: “This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and" }, { "docid": "13125152", "title": "", "text": "did not err in finding that Contreras voluntarily consented to the search of his residence. Contreras raises the same arguments in support of his motion to suppress incriminating statements he made to law enforcement officers after receiving his Miranda warnings. “We review the district court’s findings of fact for clear error and its legal conclusion as to whether a confession was voluntary de novo.” United States v. LeBrun, 363 F.3d 715, 724 (8th Cir.2004). In making these determinations, we “inquire into the totality of the circumstances in assessing the conduct of law enforcement officials and the suspect’s capacity to resist any pressure.” United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.1995). See also, United States v. Makes Room, 49 F.3d 410, 414 (8th Cir.1995) (noting that courts apply the same standard to assess the validity of a Miranda waiver and the voluntariness of a statement under the Fifth Amendment). For the reasons set forth above, we affirm the district court’s finding that Contreras made a voluntary waiver. We next consider whether the district court erred in denying Contreras’s request for a downward adjustment for acceptance of responsibility pursuant to § 3E1.1. Because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility,” we review with “great deference.” U.S.S.G. § 3E1.1, cmt. n. 5. We will reverse only if the district court’s findings are clearly erroneous and completely lack foundation. United States v. Greger, 339 F.3d 666, 672 (8th Cir.2003). Section 3El.l(a) provides for a two-level reduction in a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” The commentary to this guideline further provides: This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises" } ]

[ { "docid": "10921067", "title": "", "text": "imposes significant costs on the agency in terms of both equipment and training. For example, the average SABRE and Apollo subscriber fees per year per agency location (not agency) in 1986 were $10,596 and $12,763, respectively. Thus, agents are unlikely to switch to another CRS unless the costs of conversion are paid for by the new vendor. Second, the minimum of parity rule constitutes a contractual restriction on the subscribing agents use of other CRSs. Finally, plaintiffs point out that the airline industry has always been characterized by narrow operating margins, therefore, even slight reductions in sales have a disproportionately adverse impact on profits and the carrier’s ability to compete. These contractual provisions and the structure of the air transportation market are claimed to prevent effective competition in the CRS market, and consequently, justify plaintiffs’ argument that SABRE is an essential facility to the air transportation market despite the existence of competing CRSs. Plaintiffs’ point to the conclusions of government regulatory bodies and Judge Posner’s opinion for the court in United Airlines, Inc. v. C.A.B., 766 F.2d 1107 (7th Cir.1985) where the court upheld the CAB’s antibias rule. In United, the court wrote: Unless an airline limits its operations to one small region, it must, whether or not it has its own computerized reservation system, persuade several of the largest airlines to list its flights in their [CRS] systems if it is to have a fair chance of success. It is thus dependent for an essential facility on what may be its principal competitors. Id. at 1114. Judge Posner’s opinion has a number of helpful observations. First, it is necessary to put the case in its proper perspective. The Seventh Circuit held, as a matter of administrative law, that the CAB’s exercise of rulemaking authority was within the scope delegated by Congress through the Federal Trade Commission Act, section 5, as amended 15 U.S.C. § 45, and the Federal Aviation Act of 1958, section 411, 49 U.S.C. App. § 1381. Under these statutory provisions the CAB can forbid anticompetitive practices “before they become serious enough to violate the Sherman Act.”" } ]

[ { "docid": "2920176", "title": "", "text": "MEMORANDUM OPINION AND ORDER HELEN S. BALICK, Bankruptcy Judge. This is the Court’s decision on the Motion to Abstain and To Remand to State Court or in the Alternative for Change of Venue filed by Marlyn Allen, et al (Movants or Allen Group). Background The Allen Group is a group of 40, or more , former Frontier Airlines’ employees who in October, 1988 filed a civil action in the District Court for the City and County of Denver, Colorado against Continental Airlines, Inc., et al. (Debtors), other entities, and certain individuals. Their seventeen count complaint alleges various tort claims arising from the purchase of Frontier Airlines by People Express in 1985, the demise of Frontier Airlines, and the Frontier-Continental Job Preservation and Litigation Settlement. When Debtors filed for bankruptcy protection on December 3, 1990 the Allen Group’s action was automatically stayed pursuant to section 362(a) of the Bankruptcy Code. On January 1, 1993 Debtors commenced an Adversary Proceeding in this Court, seeking the disallowance of the Allen Group’s claims or alternatively, the subordination of a portion of those claims. On March 3, 1993 the Allen Group filed the motion at issue, requesting that this Court abstain from determining their claims, remand the case to Denver District Court, or alternatively, transfer venue to the Colorado Bankruptcy Court. Subsequent to the filing of this motion, Debtors’ Revised Second Amended Joint Plan of Reorganization (Plan) was confirmed by this Court. Contentions of the Parties The Allen Group maintains that this Court must abstain (mandatory abstention) from adjudicating their claims for the following reasons: first, the underlying action is based on state law tort claims and although it relates to Title 11, did not arise under Title 11; second, there is no independent basis for federal jurisdiction; third, this action was pending in state court prior to debtors’ Chapter 11 filing; and fourth, the case could be timely adjudicated in state court. Movants alternatively contend that discretionary abstention is appropriate under the present facts. According to the Allen Group, the proceedings at issue are more properly tried in Colorado because the action is presently" }, { "docid": "14986145", "title": "", "text": "OPINION AND ORDER KATHERINE POLK FAILLA, District Judge: Plaintiffs filed the instant class action on behalf of consumers who have purchased airline tickets from nine major air carriers during the past ten years. The Amended Complaint alleges that Defendants, a group of global distribution systems through which airlines provide fare and schedule information to travel agents, conspired to restrain competition in violation of various federal and state antitrust and state' consumer protection laws. Defendants now move to dismiss on the grounds that Plaintiffs’ state-law causes of action are preempted; Plaintiffs lack standing; and Plaintiffs’ claims either fall outside the applicable statute of limitations periods or are equitably barred. For the reasons stated in this Opinion, Defendants’ motion is granted in part; Defendants’ motion to dismiss Plaintiffs’ claims for violations of state antitrust and consumer protections laws is granted, while their motion to dismiss Plaintiffs’ claim under federal antitrust law is denied. BACKGROUND A. Factual Background Defendants Amadeus IT Group, S.A., Amadeus North America, Inc., and Amadeus Americas, . Inc. (together, “Amadeus”); Sabre Corporation, Sabre Hold ings Corporation, Sabre GLBL Inc., and Sabre Travel International Limited (together, “Sabre”); and Travelport Worldwide Limited and Travelport LP (together, “Travelport,” and together with Amadeus and Sabre, “Defendants”), are technology providers known as global distribution systems (“GDS”). GDSs serve as a conduit between travel service providers — such as airlines — and travel agencies, through which travel providers distribute information about available services and . fares. (Am. Compl. ¶ 1). Each time a consumer books a flight segment from a travel agent using a GDS, ,the airline supplying the flight must pay a fee to the GDS. (Id. at ¶ 3). The major American airlines rely heavily on GDSs to disseminate, information to travel agents; Defendants collectively control nearly the entire American market for GDS services, receiving approximately $2.4 billion in fees from airlines annually. (Id. at ¶¶2-3). 1. The Development of the GDS Market and Federal Regulation In the 1960s, airlines began developing their own in-house computerized reservation systems (“CRS”) for aggregating and supplying flight and fare information to consumers. (Am. Compl. ¶¶ 139-40)." }, { "docid": "5238163", "title": "", "text": "STEPHEN H. ANDERSON, Circuit Judge. Appellants Paul Hart, Dane Yannice and Milton Howard appeal from a district court order granting summary judgment to United Air Lines, Inc. (“United”) and dismissing their complaint against United for allegedly violating its duty to accord them their first right of hire under section 43(d) of the Airline Deregulation Act of 1978 (the “Act”), 49 U.S.C.App. § 1552(d). Before us are two issues: first, whether appellants relinquished their first right of hire under section 43(d) of the Act by rejecting an offer for employment in their occupational specialty; and second, whether the district court properly held that the statute of limitations for actions brought under section 43(d) of the Act is six months. Because we find the district court improperly ruled on both issues, we reverse. I. The appellants were employed with Frontier Airlines, Inc. (“Frontier”) until Frontier ceased operations and filed for bankruptcy in August of 1986. During the Frontier bankruptcy proceedings, a motion was filed seeking approval of a Job Preservation Agreement (the “JPA”) between Frontier, its parent, Continental Airlines, Inc. (“Continental”), and various Frontier unions representing appellants and other Frontier union employees. See Appellee’s Appendix, Ex. C. The JPA was designed to eliminate the majority of claims against the Frontier estate in order to advance Continental’s purchase and utilization of Frontier’s assets. Under this agreement the participating employees would waive certain claims against Frontier and Continental, and in return receive either the opportunity to be employed with Continental, as vacancies became available, or a payment in cash and/or Continental flight passes. Id. Each appellant, foregoing the option to accept the employment opportunity, chose a payment of cash and/or passes. United presented evidence that had appellants chosen the employment option, they would have received employment in their occupational specialty from Continental. Appellants challenge the inference drawn from that evidence. Subsequently, on different occasions, each appellant sought unsuccessfully to obtain employment with United. Appellants with other plaintiffs then brought an action against United, alleging that United failed to accord them their first right of hire to which they were entitled under section 43(d) of" }, { "docid": "23577964", "title": "", "text": "filed the first version of the complaint in this action on November 24, 1980, alleging that the defendants’ failure to award certain construction contracts to the Corporation violated federal constitutional and statutory law. A more detailed background statement is provided in an early district court opinion in this case, see Jones v. Niagara Frontier Transportation Authority, 524 F.Supp. 233 (W.D.N.Y.1981). Jones filed the original complaint pro se, on behalf of both himself and the Corporation; the Corporation initially was unrepresented by counsel. On April 17,1981, after several defendants had moved to dismiss the action on various grounds, the district court dismissed Jones’ individual claims, holding that Jones did not have standing to challenge alleged injuries to the Corporation. The court also held that the Corporation would have to retain counsel in order to proceed with the action. Jones subsequently attempted to circumvent this ruling by assigning the Corporation’s claims to himself; the district court held, however, that a corporation could not assign its claims to a lay person in order for the lay person to prosecute the corporation’s claims. This court affirmed that ruling, see Jones v. Niagara Frontier Transportation Authority, 722 F.2d 20 (2d Cir.1983). In July 1981, the attorney which the Corporation had then retained sought leave to amend the complaint. The amended complaint, filed in August 1981, omitted several of the defendants previously joined in the action. On October 8,1981, the district court issued an order to show cause why the claims against those defendants should not be dismissed. On the return date, no one appeared on behalf of the Corporation, and therefore on November 2, 1981, the court ordered the action dismissed as to those defendants, with prejudice. Judge Elfvin concluded that the decision to delete certain defendants was a strategic one on the part of plaintiff’s counsel. Over the years, Jones made numerous attempts to have himself reinstated as a party, all of them unsuccessful. He also sought unsuccessfully to reinstate the defendants who had been dismissed from the action. The passing years were witness to a great flurry of paper-work — including several amended" }, { "docid": "1801980", "title": "", "text": "its programming services to BCS and (2) that PDA resubmit all past invoices addressed to American Excel to BCS. PDA substantially complied with both requests. PDA claims, however, that its invoices continued to be paid out of an American Excel account. PDA also continued to have contact with American Excel employees. Approximately ten months later, in August 1984, Barrett sold most, or all, of his interest in American Excel to Frontier Insurance Holding Corporation (“Frontier”). The stock purchase agreement controlling this sale specified that, at the closing of the sale of American Excel, Barrett would repurchase certain items from Frontier, including the computer programs written by PDA. In his affidavit opposing PDA’s summary judgment motion, Barrett claims that at the time he purchased the programs, he also received all rights related to them — including all causes of action. Barrett’s affidavit also states that he subsequently “conveyed” the computer programs to BCS. On February 3, 1987, BCS filed the complaint in the instant case, in the United States District Court for the Northern District of Texas, asserting diversity as the ground for federal jurisdiction. BCS’ complaint alleged the following four causes of action against PDA: (1) breach of contract, (2) Texas Deceptive Trade Practices Act violations, (3) fraud, and (4) common law negligence. PDA denied BCS’ claims and filed a summary judgment motion in relation to BCS’ claims against it. PDA based this motion on the grounds that BCS did not have standing to bring the instant suit because it lacked privity to the contract, negotiations, and services upon which its complaints were based. In the alternative, PDA claimed that even if BCS were found to have standing, PDA was entitled to a partial summary judgment because the two year statute of limitations had run on BCS’ Deceptive Trade Practices Act, fraud, and negligence claims. The district court granted PDA’s summary judgment motion, holding that even after an opportunity for discovery, BCS did not present adequate evidence to create a genuine issue of material fact about whether it possessed the privity of contract necessary for standing. The district court found" }, { "docid": "19015820", "title": "", "text": "TALBOT SMITH, Senior District Judge. This is a private civil antitrust action. The basic question presented is the use to be made of the old Kansas City Municipal Airport. The plaintiff, Mark Aero, Inc., is a chartered air taxi operator. It wants to reopen the old airport, now closed to commercial operations, to begin a new scheduled air passenger service between Kansas City and St. Louis, Missouri. The defendants, scheduled air carriers, Trans World Airlines, Inc. (TWA) and Frontier Airlines, Inc. (Frontier) maintain scheduled air passenger service between Kansas City and St. Louis, Missouri. They oppose the reopening. The plaintiff’s efforts before the Kansas City municipal government having been unsuccessful over a period of time, it invites us to resolve the matter through the application of the antitrust acts. We decline to do so and order the case dismissed. This is a governmental problem, to be solved by the electorate through its proper officials. There is no warrant for our intervention on plaintiffs theory that the antitrust statutes control. The District Court denied defendants’ motions to dismiss the plaintiff’s antitrust action. This is an appeal, upon certification, of the interlocutory order thereupon entered. We find that the District Court erred in its application of the Noerr-Pennington doctrine, the sole issue presented, and we remand with directions to dismiss the complaint. The City of Kansas City operates two airports, the Kansas City International Airport, which was opened to airline traffic in 1972, and the Kansas City Municipal Airport, an older and smaller facility located much closer to the downtown area. Since 1972, when all of Kansas City’s scheduled air passenger service was transferred to Kansas City International, the Municipal Airport has served the City’s other, general aviation, needs. In the implementation of the City’s policy concerning the opening or closing of its airports, the City is exercising part of the broad powers of self-government granted to it as a chartered home-rule city under the Missouri Constitution. Article 6, § 19(a) of the Missouri Constitution provides; Any city which adopts or has adopted a charter for its own government, shall have all" }, { "docid": "22581745", "title": "", "text": "only be akin to the present action in a way reasonable persons would understand as important to the issues involved.” Corrugated, 659 F.2d at 1346. Northwest included the incident under the heading “Conduct Giving Rise to Violations Alleged” in its complaint. This is not easily explained away, especially given Northwest’s heavy reliance on the location of the Crandall allegation in the Fort Bend petition’s “procedural history” in attempting to prove that the incident was not at issue in that case. We are persuaded that VE’s representation of American in the Fort Bend case is substantially related to the present case. 2) System One In System One, Continental affiliate System One, a CRS vendor, charged that American had violated antitrust laws in its provision of CRS services. System One alleged that American had engaged in a variety of acts designed to exclude it from the CRS market. But as in Fort Bend, plaintiff presented the CRS and air transportation markets as inextricably linked. The System One complaint alleged that “AA has used its monopoly power in the provision of air carrier services in various geographic markets to obtain, retain, and enhance its power in the provision of CRS systems.” Again, “AA has achieved its dominant position in the market for CRS services, and continues to enforce anticom-petitive practices in an effort to maintain that position, not only to reap monopoly profits from the sale and use of CRS systems, but to enhance profits from the provision of air transportation services.” The record reflects extensive discovery regarding SABRE’s effects on air transportation revenues. System One requested all documents relating to “incremental revenues,” the general effect of “airline ownership of a CRS on the airline’s sale of air transportation services,” and “any actual or possible loss of revenue or other detriment to any commercial air carrier as a result of the operation or installation of SABRE.” In response, American agreed to produce all documents “that discuss, study, or analyze whether, and the extent to which, any airline (including American) which owns a CRS obtains incremental airline revenue as a consequence of automating travel" }, { "docid": "20344550", "title": "", "text": "Atlantic’s common law claims are preempted by federal law and are dismissed. Section 1305(a)(1) of the Airline Deregulation Act of 1978, 49 U.S.C.App. § 1305(a)(1), expressly prohibits states from “enact[ing] or enforcing] any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier ...” In Morales v. Trans World Airlines, Inc., 504 U.S. 374, —, 112 S.Ct. 2031, 2037, 119 L.Ed.2d 157 (1992) the Supreme Court held that the statute is to be read expansively and that the language preempts all actions having a “connection with or reference to airline ‘rates, routes or services,’ ” unless that relationship is “too tenuous, remote, or peripheral.” 504 U.S. at —, 112 S.Ct. at 2040, 119 L.Ed.2d at 171-72. The Court applied this rule to strike down state regulation of airline fare advertising. The theory underlying plaintiffs common law claims is that defendant has used sharp practices to lure away customers. That is within the broad meaning of “rates, routes or services” and the facts here are analogous to those in two other cases in which courts have ruled that state law claims were preempted. In Continental Airlines, Inc. v. American Airlines, Inc., 824 F.Supp. 689 (S.D.Tex.1993), Continental challenged American’s “Value Pricing plan,” a system of reduced ticket prices. Continental alleged federal an titrust claims and state-law claims for tortious interference with business relations and unfair competition. The court dismissed the tort claims as preempted by the Airline Deregulation Act. Continental, 824 F.Supp. at 697. Similarly, in Frontier Airlines, Inc. v. United Air Lines, Inc., 758 F.Supp. 1399 (D.Colo.1989), Frontier challenged United’s use of its computer reservation system and its dealings with travel agents. It alleged claims under the Colorado Antitrust statue and the Colorado Unfair Practices Act as well as common law claims for unfair business practices and tortious interference with contracts and prospective contractual relations. The court held that all of Frontier’s state law claims were preempted. Frontier, 758 F.Supp. at 1411. Three of the cases plaintiff cites are clearly distinguishable. Butcher v. City of Houston, 813" }, { "docid": "20344551", "title": "", "text": "facts here are analogous to those in two other cases in which courts have ruled that state law claims were preempted. In Continental Airlines, Inc. v. American Airlines, Inc., 824 F.Supp. 689 (S.D.Tex.1993), Continental challenged American’s “Value Pricing plan,” a system of reduced ticket prices. Continental alleged federal an titrust claims and state-law claims for tortious interference with business relations and unfair competition. The court dismissed the tort claims as preempted by the Airline Deregulation Act. Continental, 824 F.Supp. at 697. Similarly, in Frontier Airlines, Inc. v. United Air Lines, Inc., 758 F.Supp. 1399 (D.Colo.1989), Frontier challenged United’s use of its computer reservation system and its dealings with travel agents. It alleged claims under the Colorado Antitrust statue and the Colorado Unfair Practices Act as well as common law claims for unfair business practices and tortious interference with contracts and prospective contractual relations. The court held that all of Frontier’s state law claims were preempted. Frontier, 758 F.Supp. at 1411. Three of the cases plaintiff cites are clearly distinguishable. Butcher v. City of Houston, 813 F.Supp. 515 (S.D.Tex.1993) dealt with a slip and fall in an airport. Seidman v. American Airlines, Inc., 923 F.2d 1134 (5th Cir.1991) was also a personal injury action; it concerned a passenger injured on an airplane’s emergency slide. Levy v. American Airlines, Inc., No. 90 Civ. 7005 (LJF), 1993 WL 205857, (S.D.N.Y. June 9, 1993), considered whether an airline was liable for injuries allegedly suffered by a prisoner in a scuffle with law enforcement officers. In Wolens v. American Airlines, Inc., 157 Ill.2d 466, 626 N.E.2d 205, 193 Ill.Dec. 172 (1993), cert. granted, — U.S. —, 114 S.Ct. 1396, 128 L.Ed.2d 69 (1994), on which plain tiff also relies, the Illinois Supreme Court considered whether § 1305 preempted a state law damages action for breach of contract against an airline which made unilateral retroactive changes in its frequent flier program. On remand from the Supreme Court for further consideration in light of Morales, the Illinois Supreme Court held that frequent flier programs were “peripheral to the operation of an airline,” and that thus, state law" }, { "docid": "13875441", "title": "", "text": "MEMORANDUM OPINION AND ORDER KANE, Senior District Judge. This is an appeal from the bankruptcy court’s February 27, 1989 ruling denying the Haggart Group’s motion to reconsider the disallowance of its claims. In its order, the bankruptcy court upheld its earlier ruling striking the claims of all former Frontier Airline employees, including the members of the Haggart Group, who had executed written waivers of claims. The Group argues that the bankruptcy court erred because the waivers were procured by fraud and duress. I. Facts. The facts of this case are set out in my earlier opinions in two related matters, Winkel Group v. Frontier Airlines (In re Frontier Airlines, Inc.), 108 B.R. 274 (D.Colo.1989), and Bunn v. Frontier Airlines, Inc. (In re Frontier Airlines, Inc.), 117 B.R. 585 (D.Colo.1990), aff'd, 951 F.2d 1259 (10th Cir.1991), and in the bankruptcy court’s rulings below. (See R.Doc. 1; R.Doc. 4). I repeat only those necessary to a ruling in this appeal. Frontier Airlines, Inc., filed for Chapter 11 bankruptcy protection on August 26, 1986 after efforts to structure a sale of certain of its assets to United Airlines failed. Later that fall, Frontier began negotiations for the sale of its assets to Continental Airlines, Inc. To make the sale viable, Frontier requested concessions from four employee unions to abrogate a 1985 collective bargaining agreement and to obtain employee waivers of any claims based on that agreement. The resulting Job Preservation Agreement (JPA) approved by union membership and executed by the unions, provided that, in exchange for a waiver of all claims against Frontier except certain “surviving claims” as defined in the JPA, employees would be entitled to job opportunities with Continental or a severance package. The JPA was not to become effective unless 75 percent of union membership executed waivers. On October 9, 1986, Frontier filed a motion for bankruptcy court approval of the JPA. After expedited notice and a hearing, on October 17, 1986, the bankruptcy court approved the JPA. The court based its approval on the JPA’s ratification by the unions and execution by approximately 90 percent of the unions’ membership" }, { "docid": "2920178", "title": "", "text": "pending in the Colorado District Court; the events giving rise to the Allen Group’s claims occurred in Colorado and involve Colorado law; the Allen Group has requested a jury trial; Movants and a majority of their witnesses are located in Colorado; and the District Court in Colorado is familiar with issues involved in this matter. As a second alternative, the Allen Group requests that the Court transfer venue to the United States Bankruptcy Court for the District of Colorado. Debtors reject the Allen Group’s contention that the Court must abstain from hearing the action at issue. They argue that the resolution of Movants’ claims is a core proceeding and thus, mandatory abstention is inapplicable. Debtors also submit that discretionary abstention is unwarranted, arguing that adjudication in another forum would slow the administration of Debtors’ bankruptcy case. Moreover, they contend that nothing about the Allen Group’s state law claims is unique to Colorado state law; rather, it is likely, based on an earlier finding by Denver District Court with regard to the Allen Group’s suit against United Airlines, that the Colorado Court will find that federal labor law preempts the state law causes of action and therefore, the state court lacks jurisdiction. Finally, Debtors maintain that most of Movants’ claims are derivative and were eliminated under the terms of Debtors’ confirmed Plan of Reorganization. In response to Movants’ alternative request for a transfer of venue, Debtors argue that the Allen Group has not demonstrated, as it must, that the balance of convenience clearly weighs in favor of a transfer of venue. Absent such proof, Debtors maintain that all matters involving the bankruptcy should be tried in the forum where the bankruptcy is pending. Additionally, although the Colorado Bankruptcy Court is familiar with issues raised by the Frontier transactions and germane to Movants’ claims, Debtors contend that evaluation of those claims will involve a determination of their derivative nature and their release under Continental’s Plan and thus, should be determined by this Court. Discussion Bankruptcy judges may choose to abstain from hearing and deciding a proceeding arising under the Bankruptcy Code or" }, { "docid": "20300073", "title": "", "text": "By May 31, 2002, each defendant had eliminated its practice of paying travel agencies a base commission. In addition, several defendants filed for and have emerged from Chapter 11 bankruptcy, including Delta, Northwest, and United. B. On April 9, 2003, plaintiff Tam Travel, Inc. and forty-eight other travel agencies filed a complaint against defendants for illegally agreeing to cap, cut, and eliminate base commissions in violation of § 1 of the Sherman Antitrust Act. 15 U.S.C. § l. On September 13, 2007, plaintiffs had dismissed defendants U.S. Airways and U.S. Airways Group from the suit without prejudice. On September 14, 2007, the district court determined that the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), could impact the present case and allowed plaintiffs to file an Amended Complaint. On September 28, 2007, several defendants filed a joint motion to dismiss the Amended Complaint under Fed.R.Civ.P. 12(b)(6). On October 29, 2007, the district court granted defendants’ motion to dismiss, ruling that: (1) plaintiffs failed to allege any conduct other than sporadic parallel conduct regarding America West, Alaska, Frontier, and Horizon; (2) plaintiffs failed to allege any parallel conduct as to KLM; (3) the emergence of Northwest, United, and Delta from bankruptcy discharged plaintiffs’ claims; (4) with regard to Continental and United, plaintiffs failed to aver sufficient facts to plausibly suggest an illegal agreement under Twowhly; and (5) with regard to AAG, a holding company that does not itself pay commissions, plaintiffs failed to allege any facts. Plaintiffs filed a timely motion for reconsideration, which the district court denied on March 13, 2008. This appeal followed. II. Plaintiffs first contend that the district court erred when it ruled that their § 1 claims against United were discharged by the bankruptcy court. By operation of the Bankruptcy Code, confirmation of a reorganization plan “discharges the debtor from any debt that arose before the date of ... confirmation.” 11 U.S.C. § 1141(d). Section 101(12) of the Bankruptcy Code defines a “debt” as “liability on a claim.” Pursuant to 11 U.S.C. § 101(5), a" }, { "docid": "12415034", "title": "", "text": "LOGAN, Circuit Judge. Plaintiff Ardell Arfsten brought suit under the Employee Retirement Income Security Act of 1974 (ERISA), Pub.L. No. 93-406, 88 Stat. 829 (codified in relevant part as amended at 29 U.S.C. §§ 1001-1461) against Frontier Airlines, Inc. Retirement Plan for Pilots (Plan) and the four members of the Pension Board (Board), to recover disability retirement benefits he alleged were due him under the Plan. After discovery, both parties filed motions for summary judgment. The district court granted plaintiff’s motion for summary judgment and ordered that each party pay their own attorney’s fees. Plaintiff filed a motion to alter the judgment, requesting attorney’s fees under 29 U.S.C. § 1132(g)(1), and the district court denied the request. Defendants appeal the district court’s finding that the Board’s decision denying plaintiff disability retirement benefits was arbitrary and capricious. 742 F.Supp. 577. Plaintiff appeals the district court’s refusal to award him reasonable attorney’s fees. I The facts were stipulated by the parties. Plaintiff is a former long-term employee of Frontier Airlines, Inc. (Frontier) and is a participant in the Plan. The Plan is an employee pension benefit plan as defined by ERISA. See 29 U.S.C. § 1002(2)(A). Plaintiff was employed by Frontier as Vice President of Flight Operations when, on August 24, 1986, Frontier ceased operations and terminated its employees. Frontier filed for bankruptcy on August 28, 1986, and continued operations as debtor-in-possession. On August 29 Frontier as debtor-in-possession employed plaintiff on a temporary basis as Vice President of Flight Operations, T.A. (the “T.A.” denotes a temporary assignment). Plaintiffs temporary position was terminated on November 14, 1986. While plaintiff was on temporary assignment for Frontier debtor-in-possession, he applied for employment with Continental Airlines. He successfully completed a pre-hire medical exam and simulator training, and he satisfactorily completed his proficiency check for Continental on October 30, 1986. Continental employed plaintiff as a pilot on November 15. He flew commercial flights for Continental from November 15, 1986, to April 11, 1987. Plaintiff suffered a heart attack on April 11. As a result of the heart attack plaintiff’s FA A certification was denied, and he became" }, { "docid": "855116", "title": "", "text": "by reference to it, as it may by looking at any and all similarly relevant considerations. The Board’s change of position in this case on extending TXI’s award to Salt Lake stands or falls, in the last analysis, on the strength of its judgment as to the importance of giving Salt Lake the maximum of direct connections with the Southwest. In arriving at the final judgment it has, the Board has denied Frontier no procedural or substantive right conferred upon it by the regulatory scheme created by Congress. Having satisfied ourselves on this score, our function is at an end. The designing of an airline route pattern for the United States most compatible with the public interest is, unhappily, not an exact science. The airline industry and the public alike are largely at the mercy of the degree of skill and disinterest and good sense which the Board periodically brings to this delicate and difficult task. Courts have no special qualifications in this area for second-guessing the Board as to the merits of its determinations, once they have been arrived at within a framework of procedural fair play. Unwarranted judicial intervention only serves to divert the spotlight of accountability for the health of air transportation from the place where it should be steadily and continuously focused, that is to say, on the Board. Affirmed. . The awards made by the Board in the so-called Pacific Northwest-Southwest Service Investigation were of noncompetitive routes to Braniff Airways and Continental Air Lines. Neither Salt Lake nor Denver was made part of either of these awards. . Its reason for doing so was that the traffic available between Salt Lake City and the Southwestern points on TXI’s route was thought to be so light as to put in question the profitability of such operations, thereby causing TXI to route such flights through Denver in order to rely upon Salt Lake-Denver local traffic. This, said the Board, would create “undesirable competition with Frontier, another subsidized local carrier, in a market also served by two trunkline carriers.” . In the answer filed by it to the" }, { "docid": "16931419", "title": "", "text": "claims often overlap. See Wolens, 513 U.S. at 236, 247-49, 115 S.Ct. at 827-28, 832-34 (Stevens, J., and O’Connor, J., separately dissenting). Wolens also expresses the ADA’s purpose “to leave largely to airlines themselves, and not at all to States, the selection and design of market mechanisms appropriate to the furnishing of airline transportation services.... ” Id. at 227, 115 S.Ct. at 823 (emphasis added). While some airline business dealings undoubtedly do not “relate to” prices, routes and services, the carrier’s relations with travel agents, as intermediaries between carriers and passengers, plainly fall within the ADA’s deregulatory concerns. Lyn-Lea’s claims are ADA-preempted because they have a “connection with” American’s prices and services. Even before Wolens, it was held that similar claims are preempted by the ADA. In Frontier Airlines, Inc. v. United Air Lines, Inc., 758 F.Supp. 1399 (D.Col.1989), the court held that the ADA preempted an action based on Colorado law alleging that United Airlines interfered with business relationships by requiring the use of a United-owned CRS system to book flights. The court determined that the CRS system was central to United’s services because United required use of the CRS system to book flights. Similarly, American requires use of the Sabre CRS system to book flights, and American’s policies relating to the CRS system are connected with the economic aspects of its services. Frontier, 758 F.Supp. at 1407-09. The existence of federal regulations regarding airline CRS services and the legislative history of the ADA provide additional support for the conclusion that the ADA preempts Lyn-Lea’s claims. The Department of Transportation, pursuant to regulatory authority under the ADA, has promulgated regulations applicable to airline CRS systems. See 14 C.F.R. § 255 et seq. “[FJederal efforts to regulate CRS services and uses clearly demonstrate[ ] that the preemption statute should be applied to eliminate the risk that CRS providers could be subject to varying state standards of unlawful competition.” Frontier, 758 F.Supp. at 1409. The ADA’s legislative history also specifically discuss es federal regulation of airline CRS services, and this provides “clear and convincing evidence that Congress intended to preempt state" }, { "docid": "16931420", "title": "", "text": "that the CRS system was central to United’s services because United required use of the CRS system to book flights. Similarly, American requires use of the Sabre CRS system to book flights, and American’s policies relating to the CRS system are connected with the economic aspects of its services. Frontier, 758 F.Supp. at 1407-09. The existence of federal regulations regarding airline CRS services and the legislative history of the ADA provide additional support for the conclusion that the ADA preempts Lyn-Lea’s claims. The Department of Transportation, pursuant to regulatory authority under the ADA, has promulgated regulations applicable to airline CRS systems. See 14 C.F.R. § 255 et seq. “[FJederal efforts to regulate CRS services and uses clearly demonstrate[ ] that the preemption statute should be applied to eliminate the risk that CRS providers could be subject to varying state standards of unlawful competition.” Frontier, 758 F.Supp. at 1409. The ADA’s legislative history also specifically discuss es federal regulation of airline CRS services, and this provides “clear and convincing evidence that Congress intended to preempt state law in the regulation of CRS services.... ” Id. at 1408-09 (quoting H.R. Rep. No. 98-793, at 4 (1984), reprinted in 1984 U.S.C.C.A.N. 2857). Finally, Lyn-Lea’s claims do not seek to enforce American’s self-assumed contractual obligations. Lyn-Lea’s breach of contract claim was dismissed by the magistrate judge on other grounds, and Lyn-Lea has not appealed the ruling. Because Lyn-Lea’s' claims relate to American’s prices and services, the claims are preempted by the ADA. S. Preemption of Lynr-Lea’s Affirmative Defense Lyn-Lea next contends that the trial court erred by dismissing, as preempted, its fraudulent inducement defense to the enforcement of the Sabre CRS agreement. Noting that Wolens confined courts “to the parties’ bargain, with no enlargement or enhancement based on state laws or policies external to the agreement,” the court determined that Lyn-Lea’s fraudulent inducement defense would impermissibly enhance Lyn-Lea’s rights apart from the Sabre CRS agreement under state law. Indeed, Wolens cautioned, when it decided that enforcement of air carriers’ contracts is not preempted, “ ‘some state-law principles of contract law ... might well be" }, { "docid": "16931418", "title": "", "text": "policies, commission structure and reservation practices. A very narrow reading of Wolens might be said to support Lyn-Lea’s position, at least as it pertains to claims of fraud regarding the Sabre contract negotiations. (The interference with business relations claim is plainly preempted because it involves American’s prices and services to customers.) Wolens specifically preempted a consumer fraud statute, while Lyn-Lea rests its claim on state common law and, even more narrowly, on fraud related to the making of the contract. And Wol-ens concerned programs run by the airline directly with consumers, whereas the contract dispute here pits American/Sabre against a travel agency; Lyn-Lea thus argues that American’s “services” were too peripherally affected by a travel agent controversy to be preempted. Although Wolens might be interpreted to permit the litigation of extra-contractual common law business torts that do not directly involve airline passengers, we think the better reading of the decision requires preemption. The majority opinion repeatedly singles out common law contract actions as not being preempted, notwithstanding complaints by both dissenters that contract and fraud-based claims often overlap. See Wolens, 513 U.S. at 236, 247-49, 115 S.Ct. at 827-28, 832-34 (Stevens, J., and O’Connor, J., separately dissenting). Wolens also expresses the ADA’s purpose “to leave largely to airlines themselves, and not at all to States, the selection and design of market mechanisms appropriate to the furnishing of airline transportation services.... ” Id. at 227, 115 S.Ct. at 823 (emphasis added). While some airline business dealings undoubtedly do not “relate to” prices, routes and services, the carrier’s relations with travel agents, as intermediaries between carriers and passengers, plainly fall within the ADA’s deregulatory concerns. Lyn-Lea’s claims are ADA-preempted because they have a “connection with” American’s prices and services. Even before Wolens, it was held that similar claims are preempted by the ADA. In Frontier Airlines, Inc. v. United Air Lines, Inc., 758 F.Supp. 1399 (D.Col.1989), the court held that the ADA preempted an action based on Colorado law alleging that United Airlines interfered with business relationships by requiring the use of a United-owned CRS system to book flights. The court determined" }, { "docid": "22581740", "title": "", "text": "air transportation services. We disagree. While the focus was certainly CRS systems, the plaintiffs also raised claims involving air transportation markets. Moreover, as we will explain, the Texas cases involved two particular matters at issue in the present case. 1) Fort Bend Fort Bend involved the state-law claims over which the California district court, upon American’s motion to dismiss, had declined to exercise pendent jurisdiction. Continental alleged breach of contract, duress, tortious interference, misrepresentation, and violation of the Texas Deceptive Trade Practices Act. As in California, Continental’s petition focused on American’s CRS operations. But also as in California, Continental asserted that American’s power in the CRS market could not be considered apart from its position in the air transportation market. Continental claimed that “American and United, by leveraging their dominance as air carriers and the enormous secret profits they received from bias-diverted revenues, established themselves as the dominant CRS providers.” Continental charged that American, having achieved dominance in the CRS market, in turn used SABRE to “exclude[] Continental in whole or in part from specific airline passenger markets.” Continental’s claims were stated in a similar manner. Continental claimed that American had breached its contract by “secretly accessing TXI’s [a Continental affiliate] data base and using it to study passenger traffic flow through the Dallas/Fort Worth hub. Reports developed by American through the use of the TXI data contributed to American’s successful exclusion of TXI from the Dallas/Fort Worth hub and elsewhere.” In its tortious interference claim Continental alleged that American had “interfered with Continental’s prospective contractual relations with its travel agents and air passengers,” causing damages in the form of “lost airline bookings through bias diversions and total exclusion from certain air passenger markets.” Finally, Continental noted that the California district court had cited American President Robert Crandall’s alleged 1982 price-fixing solicitation of Braniff as “a textbook example of anticompetitive conduct” in ruling that “Continental could proceed to trial on its claim that American illegally attempted to monopolize the Dallas-Fort Worth airport.” Continental’s allegations and its reference to Crandall’s alleged price-fixing solicitation apparently supplied the basis for the belief among" }, { "docid": "5238168", "title": "", "text": "that definition. Nor is there a dispute that both Frontier and United are air carriers holding a section 1371 certificate. The initial dispute lies over the proper construction of the phrase “furloughed or otherwise terminated by such an air carrier (other than for cause).” The rules and regulations promulgated by the Secretary of Labor under authority of section 43(f) of the Act, 49 U.S.C.App. § 1552(f), are relevant to this question. Tracking the language of the statute, these regulations provide that a person entitled to a first right of hire (a “designated employee”) is a “protected employee who is involuntarily placed on furlough or is terminated by a covered air carrier during the eligibility period.” 29 C.F.R. § 220.10(a). However, “a protected employee shall not be deemed to be furloughed or terminated” if such employee “resigned or voluntarily quit for any reason.” 29 C.F.R. § 220.-10(b)(6). The district court relied on this language to dismiss the appellants’ complaint. It equated the acceptance of severance benefits and the voluntary decision to “discontinue” working, albeit with another airline, with resigning or quitting. However, we cannot agree with that characterization. To have lost their entitlement, logically, the appellants would have needed to resign or quit from either Frontier or Continental. The appellants are quick to point out, with the record’s support, that in fact, they never resigned or voluntarily quit the employ of Frontier and that they never resigned or voluntarily quit the employ of Continental. It is beyond dispute, that the appellants were terminated by Frontier when it ceased its operations and declared bankruptcy. Opinion Letter, U.S. Department of Labor, Case No. 244B at 2 (March 29, 1988) (“Opinion Letter”), Appendix of Appellants, Tab 13, Ex. 2 (“There is no question that all the protected employees of the Frontier became eligible for designated status upon the cessation of airline operations by the carrier on August 24, 1986.”). Likewise, it is beyond dispute that the appellants never worked for Continental and therefore could not possibly have resigned voluntarily from its employ. Further, the continuity between employment at Frontier and the potential employment at" }, { "docid": "10295459", "title": "", "text": "overrule Keogh because modern legal practice had obviated the need for such a doctrine. Square D Company v. Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347, 1352-56 (2d Cir.1985). But the Supreme Court did not take Judge Friendly’s suggestion, and instead reaffirmed — if tepidly — the vitality of the filed rate doctrine. Square D Company v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 424, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986). Since this reaffirmation, courts have continued to apply the filed rate doctrine and have developed a host of exceptions and specific considerations that courts ought to address when applying it. See, e.g., Utilimax.com, Inc. v. PPL Energy Plus, LLC, 378 F.3d 303, 306-07 (3d Cir.2004) (discussing two exceptions to the filed rate doctrine, neither of which being relevant here). The pertinent considerations about the filed rate doctrine lead us to conclude that it applies to the plaintiffs’ federal and state claims for money damages. But the filed rate doctrine does not necessarily foreclose all avenues of injunctive relief the plaintiffs may be seeking. Therefore, for the reasons stated below, we will grant the defendants’ motion to dismiss, but afford plaintiffs leave to amend their complaint to request injunctive relief that is consistent with the filed rate doctrine and to allege facts sufficient to state a conspiracy claim against the corporate parent defendants. 1. Applicability of the Filed Rate Doctrine to Delaware’s Title Insurance Regulation Regime As a preliminary matter, our Court of Appeals has applied the filed rate doctrine to bar claims when the rates involved have been filed with a federal agency, but has yet to specifically rule on whether the doctrine applies to rates that state administrative agencies authorize. Cf. Utilimax.com, Inc. v. PPL Energy Plus, LLC, 378 F.3d 303, 306 (3d Cir.2004). Other courts have applied the doctrine to preclude recovery of money damages based on allegations that the rates filed with either state or federal agencies were inflated or improper. See, e.g., Wegoland, Ltd. v. NYNEX Corp., 806 F.Supp. 1112, 1115-16 (S.D.N.Y.), aff'd 27 F.3d 17 (2d Cir.1994) (dismissing civil RICO claim involving" } ]

[ { "docid": "13762693", "title": "", "text": "welfare and the environment in administering the response authority of the fund. S.Rep. 96-848, 96th Cong., 2d Sess. 56 (1980), reprinted in A Legislative History of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, at 363. (Emphasis added.) The language used in the Act itself demands a speedy response in cleaning up dangerous sites. For example, the Act authorizes responses if there is a “substantial threat of release,” thereby recognizing that speed of response outweighs certainty of damage under the Act. Section 104(a)(1), 42 U.S.C. § 9604(a)(1). The Hazardous Substance Response Trust Fund (“Fund”) was established to enable response activities to begin expeditiously, rather than having to await the outcome of litigation. To follow the course which plaintiffs suggest and to allow judicial review of the ROD at this juncture would totally frustrate one of the major objects of CERCLA — prompt action to clean up highly threatening waste sites. Plaintiffs urge that review should be de novo. That, of course, would require a lengthy trial in this court with the possibility of an appeal. Even a judicial review of the EPA action simply on the record before the agency would entail extensive activity in this court and again the possibility, or even likelihood, of a time consuming appeal. Meanwhile with every passing rainstorm and each day while melting snow percolates through the Lone Pine Landfill deadly chemical wastes would be carried towards the water supplies of substantial numbers of people. In their papers seeking injunctive relief and in their arguments before the court, plaintiffs have presented a distorted version of the true state of affairs. They suggest that on September 12, 1984 EPA for the first time notified potentially responsible parties of their right to undertake remedial action at Lone Pine; that on September 26, 1984 the Steering Committee, in response to that letter, submitted a detailed plan for effective remedial action and offered to assume complete financial responsibility for putting it into effect; and that on September 28, 1984, without even considering the Steering Committee plan, EPA issued its ROD which adopted the CDM alternative discussed" } ]

[ { "docid": "23514076", "title": "", "text": "v. Daggett, 800 F.2d 310, 314-15 (2d Cir.1986); Lone Pine Steering Committee v. EPA, 777 F.2d 882, 886-87 (3rd Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). Most of the courts that have addressed this issue after the 1986 amendments have reached the same conclusion. See, e.g., Frey v. Thomas, slip op. 88-948-c, (S.D.Ind. December 6, 1988) (“In light of this legislative history, the Court finds that 42 U.S.C.A. § 9613(h)(4) permits citizens’ suits challenging EPA actions only once a remedial action or discrete phase of a remedial action has been completed.”); Chemical Waste Management, Inc. v. EPA, 673 F.Supp. 1043, 1055 (D.Kan.1987) (“the legislative history of section 113(h) establishes that it was designed to preclude piecemeal review and excessive delay of cleanup”); cf. Dickerson, 834 F.2d at 977 (“42 U.S.C.A. § 9613(h) clearly provides that federal courts do not have subject matter jurisdiction for preenforcement review of EPA removal actions pursuant to section 9604.”); but see Cabot Corp. v. EPA, 677 F.Supp. 823 (E.D.Pa.1988) (allowing preimplementation review under section 9613(h)(4)). Because this challenge does not fit within section 113(h)(4), we lack jurisdiction over this challenge to the implementation of the remedial action plan under section 113(h). Plaintiffs argue that the action that caused the injury was the decision to employ an offsite remedial scheme and to solicit bids for the disposal of the toxic waste. Plaintiffs argue that this decision has already been taken, and that therefore they fit within section 113(h)(4)’s exception to section 113(h). This argument fails, however, because plaintiffs challenge the implementation of the remedial action plan selected, not the selection of an offsite remedial action plan in general. The district court found that section 113 does not remove this case from federal jurisdiction because of the last sentence of section 113(h)(4), which provides: “Such an action [under section 310] may not be brought with regard to a removal where a remedial action is to be taken at the site.” This sentence has no bearing on whether section 113(h) applies in this case, however. Plaintiffs challenge not a removal but a" }, { "docid": "5678832", "title": "", "text": "are subject to review.” The court then stated that no cause of action should be inferred from CERCLA: To the contrary, explicit causes of action are allowed in sections 106 and 107, 42 U.S.C. §§ 9606, 9607, but none is provided for in section 104. Because the Act’s primary purpose is “the prompt cleanup of hazardous waste sites,” Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir.1985), allowance of a cause of action prior to a response action would debilitate the central function of the Act. Lone Pine Steering Committee v. EPA, 600 F.Supp. 1487, 1495 (D.N.J.1985); accord Aminoil, Inc. v. EPA, 599 F.Supp. 69, 71 (C.D.Cal.1984). Id. at 264. Lone Pine Steering Committee and Aminoil represent two divergent lines of authority in regard to § 9613(b). In Lone Pine, which was affirmed at 777 F.2d 882 (3rd Cir.1985), cert. denied 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986), the EPA had issued a Record of Decision (ROD) which obligated the EPA to spend at least $17 million dollars in federal and state funds to close the Lone Pine hazardous waste site. The EPA took this action only after the plaintiffs refused to undertake an RI/FS after they were notified they were PRPs. The plaintiffs challenged the EPA’s actions on both statutory and constitutional grounds. The court dismissed all of the plaintiffs’ claims for lack of subject matter jurisdiction. Both the legislative history and the language of CERCLA suggest that to allow judicial review of a ROD by an entity which may (or may not) be the subject of a subsequent recovery action would frustrate Congress’ intent to provide a mechanism whereby hazardous sites can be neutralized expeditiously. 600 F.Supp. at 1495. The court concluded that there was “no reason why plaintiffs cannot raise as a defense in a cost recovery action every objection to the ROD which they could legitimately raise in a judicial proceeding at this time.” Id. at 1498-99. The Aminoil court advanced a different notion as to the scope of judicial review under CERCLA. The plaintiffs in Aminoil sought to overturn an" }, { "docid": "23514075", "title": "", "text": "Admin.News 2863 (“The section [113] is intended to codify the current position of the Administrator and the Department of Justice with respect to preenforcement review: there is no right of judicial review of the Administrator’s selection and implementation of response actions until after the response action [sic] have been completed....”); H.R.Rep. No. 253 (III), 99th Cong., 2d Sess. 22, reprinted in 1986 U.S. Code Cong. & Admin.News 3045 (“Therefore, the Judiciary Committee amendment reaffirms that, in the absence of a government enforcement action, judicial review of the selection of a response action should generally be postponed until after the response action is taken.”). This Court has already recognized that “the primary purpose of CERCLA is the prompt cleanup of hazardous waste sites.” Dickerson v. Administrator, EPA, 834 F.2d 974, 978 (11th Cir.1987) (quoting J.V. Peters & Co. v. Administrator, EPA, 767 F.2d 263, 264 (6th Cir.1985)). Prior to the 1986 amendments that enacted section 113(h), courts uniformly held that challenges to a Record of Decision were barred before full implementation. See, e.g., Wagner Seed Co. v. Daggett, 800 F.2d 310, 314-15 (2d Cir.1986); Lone Pine Steering Committee v. EPA, 777 F.2d 882, 886-87 (3rd Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). Most of the courts that have addressed this issue after the 1986 amendments have reached the same conclusion. See, e.g., Frey v. Thomas, slip op. 88-948-c, (S.D.Ind. December 6, 1988) (“In light of this legislative history, the Court finds that 42 U.S.C.A. § 9613(h)(4) permits citizens’ suits challenging EPA actions only once a remedial action or discrete phase of a remedial action has been completed.”); Chemical Waste Management, Inc. v. EPA, 673 F.Supp. 1043, 1055 (D.Kan.1987) (“the legislative history of section 113(h) establishes that it was designed to preclude piecemeal review and excessive delay of cleanup”); cf. Dickerson, 834 F.2d at 977 (“42 U.S.C.A. § 9613(h) clearly provides that federal courts do not have subject matter jurisdiction for preenforcement review of EPA removal actions pursuant to section 9604.”); but see Cabot Corp. v. EPA, 677 F.Supp. 823 (E.D.Pa.1988) (allowing preimplementation review under section" }, { "docid": "5678831", "title": "", "text": "found, or has his principal office. For the purposes of this section, the Fund shall reside in the District of Columbia. 42 U.S.C. § 9613(b). CERCLA was interpreted, however, to require that challenges to EPA actions be brought only after the remedial or response action was completed. In J.V. Peters & Co. v. Adminstrator, E.P.A., 767 F.2d 263 (6th Cir.1985), for example, the Sixth Circuit determined that an EPA decision to take a response action cannot be challenged under the Administrative Procedures Act, 5 U.S.C. § 551, et seq. In J V. Peters, the EPA was unable to negotiate an acceptable cleanup plan with the plaintiffs and determined to take response action under section 104(a). The plaintiffs brought suit to prevent the EPA from taking action, claiming that they would automatically be liable for cleanup costs. The court first held that the EPA's actions could only be reviewed under the APA which states that “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to review.” The court then stated that no cause of action should be inferred from CERCLA: To the contrary, explicit causes of action are allowed in sections 106 and 107, 42 U.S.C. §§ 9606, 9607, but none is provided for in section 104. Because the Act’s primary purpose is “the prompt cleanup of hazardous waste sites,” Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir.1985), allowance of a cause of action prior to a response action would debilitate the central function of the Act. Lone Pine Steering Committee v. EPA, 600 F.Supp. 1487, 1495 (D.N.J.1985); accord Aminoil, Inc. v. EPA, 599 F.Supp. 69, 71 (C.D.Cal.1984). Id. at 264. Lone Pine Steering Committee and Aminoil represent two divergent lines of authority in regard to § 9613(b). In Lone Pine, which was affirmed at 777 F.2d 882 (3rd Cir.1985), cert. denied 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986), the EPA had issued a Record of Decision (ROD) which obligated the EPA to spend at least $17 million dollars in federal" }, { "docid": "1030463", "title": "", "text": "a response action would debilitate the central function of the Act. Lone Pine Steering Committee v. EPA, 600 F.Supp. 1487, 1495 (D.N.J.1985); accord Aminoil, Inc. v. EPA, 599 F.Supp. 69, 71 (C.D.Cal.1984). Additionally, Congress is now considering legislation to provide explicitly that judicial review of response actions is unavailable, S. 51, 99th Cong., 1st Sess. (1985), and the Senate Report indicates this as a clarification of existing law: Pre-enforcement review Response actions or orders under section 104 and orders under section 106 may be subject to judicial review at the time the government seeks cost recovery or acts to enforce the order and collect penalties for noncompliance. This amendment clarifies and confirms that response actions and orders are not subject to judicial review prior to that time. As several courts have noted, the scheme and purposes of CERCLA would be disrupted by affording judicial review of orders or response actions prior to commencement of a government enforcement or cost recovery action. See, e.g., Lone Pine Steering Committee v. EPA, 600 F.Supp. 1487 (D.N.J.1985). These cases correctly interpret CERCLA with regard to the unavailability of pre-enforcement review. This amendment is to expressly recognize that pre-enforcement review would be a significant obstacle to the implementation of response actions and the use of administrative orders. Pre-enforcement review would lead to considerable delay in providing cleanups, would increase response costs, and would discourage settlements and voluntary cleanups. S.Rep. No. 11, 99th Cong., 1st Sess. 58 (1985). Nor do we believe that a response action is final agency action for which there is no other adequate remedy in a court. In general, agency action is final for purposes of review if it is a definitive ruling or regulation, it has legal force or practical effect upon the plaintiff’s daily business, or immediate judicial review would serve either efficiency or enforcement of the statute. Federal Trade Commission v. Standard Oil Co., 449 U.S. 232, 239-43, 101 S.Ct. 488, 493-95, 66 L.Ed.2d 416 (1980). Plaintiffs do not argue that immediate judicial review would serve either efficiency or enforcement of the Act, but they do argue that the" }, { "docid": "149903", "title": "", "text": "suffered no irreparable harm and therefore held Wagner’s claims to be meritless. We turn to appellant’s contention that the district court had jurisdiction to entertain a challenge to an EPA order on the merits prior to the initiation of an enforcement action. Ill PRE-ENFORCEMENT JUDICIAL REVIEW A presumption exists in favor of jurisdiction by federal courts over the actions of federal administrative agencies. Block v. Community Nutrition Inst., 467 U.S. 340, 104 S.Ct. 2450, 2456, 81 L.Ed.2d 270 (1984). But, “[t]his presumption, like all presumptions used in interpreting statutes, may be overcome by specific language or specific legislative history that is a reliable indicator of congressional intent.” Id. It is helpful to examine how CERCLA enforcement actions are prosecuted. These actions are commenced by the EPA for the purpose of obtaining requested relief from a polluting party. The actions may take two forms. Under 42 U.S.C. § 9606(a) when confronted with an environmental disaster, the EPA may “secure such relief as may be necessary to abate such danger or threat, and the district court ... shall have jurisdiction to grant such relief as the public interest and the equities of the case may require.” Jurisdiction therefore is expressly conferred on a district court in those instances where the EPA is the moving party. Alternatively, the EPA can itself clean up a spill and then bring an action against the responsible party for the expenses incurred. Id. §§ 9604(a), 9607(c)(3), 9631. See generally State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1041 (2d Cir.1985); Aminoil, Inc. v. E.P.A., 599 F.Supp. 69, 73 (C.D.Cal.1984). Again, jurisdiction is expressly provided for in the statute. Id. § 9607(c)(3). Other courts — concluding that Congress did not provide for pre-enforcement judicial review under CERCLA — have held that subject matter jurisdiction is lacking in federal district court. See, e.g., Wheaton Industries v. E.P.A., 781 F.2d 354, 356-57 (3d Cir.1986); Lone Pine Steering Committee v. E.P.A., 777 F.2d 882, 885-88 (3d Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986); J.V. Peters & Co., Inc. v. Administrator, E.P.A., 767 F.2d 263," }, { "docid": "1090806", "title": "", "text": "for reimbursement of costs, as authorized by section 107 of CERCLA, 42 U.S.C. § 9607. We reasoned that review before that time would frustrate the statutory goal of quick remedial action in cleaning up hazardous waste sites. Wheaton contends that Lone Pine is not controlling here because plaintiffs in Lone Pine sought to appeal from the agency’s rejection of Lone Pine’s proposed work plan in favor of the EPA-devised work plan, while Wheaton seeks to appeal from the agency’s refusal to permit it to perform and control the RI/FS. We believe that this is a distinction without a difference. In each case, the plaintiff sought control of an activity that is a necessary component of remedial actions and based the substantive claim on section 104 of CERCLA. Therefore, the rationale for the decision in Lone Pine is equally applicable here. Wheaton also suggests that it, unlike the plaintiffs in Lone Pine, has committed itself to fund an RI/FS that is acceptable to EPA. EPA argues, however, that substantial and important differences existed between the Wheaton plan and a work plan acceptable to the agencies. Brief of the EPA at 16. See also App. at 472-73. We need not address this dispute because, as we stated in Lone Pine, “[t]he legal question of when judicial review is available should not depend on the peculiar facts of each case.” 777 F.2d at 886. We held unequivocally that pre-enforcement review of EPA’s remedial actions was contrary to the policies underlying CERCLA. Thus, the district court correctly ruled that judicial review was not available under section 104 of CERCLA at this time. III. Wheaton argues that the Administrative Procedure Act is an alternative ground for jurisdiction. The Lone Pine decision does not discuss whether the APA can serve as an independent basis for judicial review of the EPA’s action at this time, and thus the issue is before us for the first time. Wheaton contends that the signing of the Cooperative Agreement between EPA and DEP constitutes final agency action, and that therefore it has the right to review under the APA, 5 U.S.C." }, { "docid": "1691144", "title": "", "text": "welfare or the environment when it determines that release of a hazardous sub stance poses an imminent and substantial danger. CERCLA’s primary purpose is “ ‘the prompt cleanup of hazardous waste sites.’” J.V. Peters & Co. v. EPA, 767 F.2d 263, 264 (6th Cir.1985) (quoting Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir.1985)). Removal refers to short-term action taken to halt any immediate risks posed by hazardous wastes. Removal includes such actions as “may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment. ...” 42 U.S.C. § 9601(23); see 40 C.F.R. § 300.6. Remedial action refers to permanent remedies taken instead of or in addition to removal action. 42 U.S.C. § 9601(24); see 40 C.F.R. § 300.6. Removal action occurs before remedial action is taken. At this time, the site is studied and various cleanup alternatives are considered. The resulting site-specific study is called a Remedial Investigation/Feasibility Study (RI/FS). This study may be performed by either the EPA or a PRP, provided the EPA has determined that the PRP will “properly and promptly” perform the study. 42 U.S.C. § 9604(a)(1). Under section 9622, the EPA may enter into negotiations to allow PRPs to conduct the RI/FS and the actual cleanup of the site. “Whenever practicable and in the public interest, [EPA] shall act to facilitate agreements under this section that are in the public interest and consistent with the National Contingency Plan in order to expedite effective remedial actions and minimize litigation.” 42 U.S.C. § 9622(a). An RI/FS may be conducted for sites which are not on the National Priorities List. The term enforcement is not explicitly defined by the statute but has been interpreted to include actions under CERCLA sections 106 and 107, 42 U.S.C. §§ 9606 and 9607, respectively. Section 9606 enables the EPA to take actions and issue orders necessary to abate “an imminent and" }, { "docid": "1691149", "title": "", "text": "Congress passed section 9613(h) to foreclose interpretations allowing pre-enforcement review of constitutional challenges. We agree. Before SARA, there were two conflicting lines of cases interpreting the power of a district court to entertain constitutional challenges to CERCLA prior to any enforcement action by EPA. Compare Aminoil, Inc. v. EPA, 599 F.Supp. 69, 72 (C.D.Cal.1984) (finding subject matter jurisdiction) and SCA Serv. of Indiana, Inc. v. Thomas, 634 F.Supp. 1355, 1359 (N.D.Ind.1986) with Lone Pine Steering Comm. v. EPA, 600 F.Supp. 1487 (D.N.J.1985) (holding that there was no subject matter jurisdiction), aff'd, 777 F.2d 882 (3d Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). Our circuit, in J. V. Peters & Co. v. EPA, 767 F.2d 263 (6th Cir.1985), held that there was no cause of action to challenge EPA’s actions under CERCLA before EPA sued for liability under 42 U.S.C. § 9607(a). The plaintiffs in J. V. Peters claimed that lack of pre-enforcement review violated their due process rights. We held that the plaintiffs “can suffer no deprivation until the adjudication of the section 107 litigation ... and they will have full opportunity to argue liability at that time.” Id. at 266. In light of our conclusion in J. V. Peters and Congress’ subsequent enactment of section 9613(h), a provision which clearly takes away federal jurisdiction prior to EPA enforcement, we are, necessarily, pre disposed against Barmet’s argument for jurisdiction. Nonetheless, we will address the arguments Barmet raises. Notably, the statutory language of section 9613(h) does not include any explicit provision for constitutional challenges. In addition, the legislative history does not support Barmet’s argument. Indeed, a Senate Report cited the Lone Pine case with approval in a discussion on pre-en-forcement review: Response actions or orders under section 104 and orders under section 106 may be subject to judicial review at the time the government seeks cost recovery or acts to enforce the order and collect penalties for noncompliance. This amendment clarifies and confirms that response actions and orders are not subject to judicial review prior to that time. As several courts have noted, the scheme" }, { "docid": "1090805", "title": "", "text": "which makes public money available for a variety of environmental cleanup costs. Wheaton then filed this suit seeking a declaratory judgment and preliminary injunction which, inter alia, would enjoin the expenditure of the Superfund money on this project. Negotiations among Whea-ton, DEP and EPA continued but no settlement was reached. EPA moved to dismiss Wheaton’s complaint for lack of subject matter jurisdiction or for summary judgment. Wheaton predicated jurisdiction either under CERCLA, 42 U.S.C. § 9613(b), or the Administrative Procedure Act, 5 U.S.C. § 704. The district court granted the motion to dismiss on the ground that CERCLA does not allow judicial review before a cost recovery action and that the EPA/DEP’s refusal to allow Wheaton to perform the RI/FS was not final agency action subject to judicial review under the APA. II. While the appeal was pending, this court issued its opinion in Lone Pine Steering Committee v. United States Environmental Protection Agency, 711 F.2d 882 (3d Cir.1985). There we held that judicial review is not available under CERCLA until the EPA files suit for reimbursement of costs, as authorized by section 107 of CERCLA, 42 U.S.C. § 9607. We reasoned that review before that time would frustrate the statutory goal of quick remedial action in cleaning up hazardous waste sites. Wheaton contends that Lone Pine is not controlling here because plaintiffs in Lone Pine sought to appeal from the agency’s rejection of Lone Pine’s proposed work plan in favor of the EPA-devised work plan, while Wheaton seeks to appeal from the agency’s refusal to permit it to perform and control the RI/FS. We believe that this is a distinction without a difference. In each case, the plaintiff sought control of an activity that is a necessary component of remedial actions and based the substantive claim on section 104 of CERCLA. Therefore, the rationale for the decision in Lone Pine is equally applicable here. Wheaton also suggests that it, unlike the plaintiffs in Lone Pine, has committed itself to fund an RI/FS that is acceptable to EPA. EPA argues, however, that substantial and important differences existed between the Wheaton" }, { "docid": "12059962", "title": "", "text": "removal or remedial action selected under section [104 of CERCLA], unless one of five specific situations is present. See 42 U.S.C.A. § 9613(h). It is at once apparent that neither § 1332 nor state law gives the district court jurisdiction to hear Boarhead’s complaint challenging the EPA’s ability to conduct an RI/FS study pursuant to § 104 of CERCLA before the EPA performs an appropriate review under § 106 of the Preservation Act. Furthermore, it is undisputed that Boar-head’s complaint does not meet any of the five exceptions enumerated in § 113(h). The limits § 113(h) imposes on a district court’s jurisdiction are an integral part of Congress’s overall goal that CERCLA free the EPA to. conduct forthwith clean-up related activities at a hazardous site. Congress enacted CERCLA so that the EPA would have the authority and the funds necessary to respond expeditiously to serious hazards without being stopped in its tracks by legal entanglement before or during the hazard clean-up. See Wheaton Indus.. v. United States EPA, 781 F.2d 354, 356 (3d Cir.1986); Lone Pine Steering Comm. v. United States EPA, 777 F.2d 882, 886-87 (3d Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986); Wagner Seed Co. v. Daggett, 800 F.2d 310, 314 — 15 (2d Cir.1986). The limits § 113(h) establishes are designed to prevent time-consuming litigation from delaying the prompt clean-up of these sites. CERCLA’s language shows Congress concluded that disputes about who is responsible for a hazardous site, what measures actually are necessary to clean-up the site and remove the hazard or who is responsible for its costs should be dealt with after the site has been cleaned up. Besides relying on the language of § 113(h), Erickson also points to the legisla tive history of CERCLA, citing certain statements made during the congressional debates over CERCLA’s provisions about the timing of the review procedures that ultimately became part of CERCLA through the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613 (1986). See 132 Cong.Rec. 29,735 (1986) (statement of Rep. Glickman); 132 Cong.Rec. 28,441 (1986)" }, { "docid": "149904", "title": "", "text": "shall have jurisdiction to grant such relief as the public interest and the equities of the case may require.” Jurisdiction therefore is expressly conferred on a district court in those instances where the EPA is the moving party. Alternatively, the EPA can itself clean up a spill and then bring an action against the responsible party for the expenses incurred. Id. §§ 9604(a), 9607(c)(3), 9631. See generally State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1041 (2d Cir.1985); Aminoil, Inc. v. E.P.A., 599 F.Supp. 69, 73 (C.D.Cal.1984). Again, jurisdiction is expressly provided for in the statute. Id. § 9607(c)(3). Other courts — concluding that Congress did not provide for pre-enforcement judicial review under CERCLA — have held that subject matter jurisdiction is lacking in federal district court. See, e.g., Wheaton Industries v. E.P.A., 781 F.2d 354, 356-57 (3d Cir.1986); Lone Pine Steering Committee v. E.P.A., 777 F.2d 882, 885-88 (3d Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986); J.V. Peters & Co., Inc. v. Administrator, E.P.A., 767 F.2d 263, 265-66 (6th Cir.1985). These courts believe that Congress envisioned a procedure that permits the EPA to move expeditiously in the face of a potential environmental disaster. To introduce the delay of court proceedings at the outset of a cleanup would conflict with the strong congressional policy that directs cleanups to occur prior to a final determination of the partys’ rights and liabilities under CERCLA. These policy concerns extend across the spectrum of possible EPA responses including the response taken here — ordering a private party to remedy a chemical spill. Hence, we agree “unequivocally that pre-enforcement review of EPA’s remedial actions ... [is] contrary to the policies underlying CERCLA.” Wheaton Industries, 781 F.2d at 356. The district court lacks jurisdiction to consider the appropriateness of appellant’s act of God defense. As a corollary to its jurisdictional argument, appellant asks that we consider the record de novo and find it entitled to an act of God defense. This argument is premised on the assumption that the district court’s conclusion based on a documentary record that it" }, { "docid": "5678834", "title": "", "text": "EPA administrative order and to challenge the constitutionality of a CERCLA provision that allows the EPA to issue daily penalties for failure to abide by an EPA order and of a provision allowing treble damages. Agreeing with Lone Pine, the Aminoil court held that “to the extent that pre-enforcement review of the merits of the administrative order is sought, this Court lacks jurisdiction to hear the arguments raised by plaintiffs.” 599 F.Supp. at 71. In regard to the penalty provisions, however, the court held that they do not involve the merits of the particular administrative order at issue here. Rather these penalty provisions raise a controversy involving the constitutionality of the statutory scheme. This Court, therefore, has jurisdiction over this controversy arising under CERCLA pursuant to § 113(b), 42 U.S.C. § 9613(b), provided that the controversy is ripe for review. Id. at 72. Other courts have followed Aminoil. E.g., Wagner Elec. Corp. v. Thomas, 612 F.Supp. 736 (D.Kan.1985). The court, in SCA Services of Indiana v. Thomas, 634 F.Supp. 1355 (N.D.Ind.1986), provided somewhat more analysis in reaching an identical conclusion. The facts in SCA Services are virtually identical to the facts in the case at bar. The EPA sent a letter to SCA stating that it was prepared to begin a RI/FS at an SCA hazardous waste site, even though the site was not listed on the NPL. The EPA inquired whether SCA wished to conduct the study, but the two were unable to come to an agreement. The EPA then indicated it would go ahead with the RI/FS itself. SCA filed a declaratory judgment action attacking CERCLA as a whole on constitutional grounds and attacking CERCLA’s application to the SCA dump. The court held that it had subject matter jurisdiction over the constitutional challenges to the statutory scheme. First, the court agreed with the EPA that the court had no jurisdiction over challenges to EPA actions within the statutory scheme. However, SCA is challenging the constitutional sufficiency of CERCLA itself. This court clearly has jurisdiction to consider a constitutional challenge to a federal statute under 28 U.S.C. § 1331." }, { "docid": "5678833", "title": "", "text": "and state funds to close the Lone Pine hazardous waste site. The EPA took this action only after the plaintiffs refused to undertake an RI/FS after they were notified they were PRPs. The plaintiffs challenged the EPA’s actions on both statutory and constitutional grounds. The court dismissed all of the plaintiffs’ claims for lack of subject matter jurisdiction. Both the legislative history and the language of CERCLA suggest that to allow judicial review of a ROD by an entity which may (or may not) be the subject of a subsequent recovery action would frustrate Congress’ intent to provide a mechanism whereby hazardous sites can be neutralized expeditiously. 600 F.Supp. at 1495. The court concluded that there was “no reason why plaintiffs cannot raise as a defense in a cost recovery action every objection to the ROD which they could legitimately raise in a judicial proceeding at this time.” Id. at 1498-99. The Aminoil court advanced a different notion as to the scope of judicial review under CERCLA. The plaintiffs in Aminoil sought to overturn an EPA administrative order and to challenge the constitutionality of a CERCLA provision that allows the EPA to issue daily penalties for failure to abide by an EPA order and of a provision allowing treble damages. Agreeing with Lone Pine, the Aminoil court held that “to the extent that pre-enforcement review of the merits of the administrative order is sought, this Court lacks jurisdiction to hear the arguments raised by plaintiffs.” 599 F.Supp. at 71. In regard to the penalty provisions, however, the court held that they do not involve the merits of the particular administrative order at issue here. Rather these penalty provisions raise a controversy involving the constitutionality of the statutory scheme. This Court, therefore, has jurisdiction over this controversy arising under CERCLA pursuant to § 113(b), 42 U.S.C. § 9613(b), provided that the controversy is ripe for review. Id. at 72. Other courts have followed Aminoil. E.g., Wagner Elec. Corp. v. Thomas, 612 F.Supp. 736 (D.Kan.1985). The court, in SCA Services of Indiana v. Thomas, 634 F.Supp. 1355 (N.D.Ind.1986), provided somewhat more analysis" }, { "docid": "2153658", "title": "", "text": "order to the array of partly redundant, partly inadequate federal hazardous substances clean up and compensation laws.’ ” New York v. Shore Realty Corp., 759 F.2d 1032, 1040 (2d Cir.1985) (quoting F. Anderson, D. Mandelker & A. Tarlock, Environmental Protection: Law and Policy 568 (1984) (footnote omitted)). “The primary purpose of CERCLA is ‘the prompt cleanup of hazardous waste sites[.]’ ” Dickerson v. EPA, 834 F.2d at 978 (quoting J. V. Peters & Co., Inc. v. EPA, 767 F.2d 263, 264 (6th Cir.1985) (citation omitted)); see also Exxon v. Hunt Corp., 475 U.S. 355, 359-60,106 S.Ct. 1103, 1107-08, 89 L.Ed.2d 364 (1986) (CERCLA “seeks to facilitate government cleanup of hazardous waste discharges and prevention of future releases.”); B.R. MacKay & Sons, Inc., 633 F.Supp. at 1292 (“It appears that with the dangers or potential dangers caused by hazardous substances, shooting first and asking questions later was the intent of Congress, making it clear that under CERCLA the EPA should have and has full reign to conduct or mandate uninterrupted cleanups for the benefit of the environment and the populous.”). To this end, courts have consistently held that where judicial review will delay remedial and removal clean up activities, they are barred from reviewing response actions prior to an attempt by the EPA to enforce its orders or allegations of liability. For example, in Lone Pine Steering Committee v. EPA, a number of PRPs — seeking to stop the EPA from implementing its remedial plan — filed a “declaratory judgment action, alleging that the EPA’s plan was too costly, the agency had failed to evaluate [their] proposal, and the Record of Decision contained inaccurate technical data and erroneous assumptions resulting in du-plicative and unnecessary corrective measures.” 777 F.2d 882, 884 (3d Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). The district court dismissed their action and the circuit court affirmed the district court’s dismissal, reasoning that “although not explicitly stated in the statute [CERCLA], we find in § 9604 an implicit disapproval of pre-enforcement judicial review.” Id. at 886-87 (“The statutory approach to the problem of" }, { "docid": "1691148", "title": "", "text": "section 9606 of this title in which the United States has moved to compel a remedial action. Also, any review of regulations promulgated pursuant to CERCLA must occur in the United States Court of Appeals for the District of Columbia. 42 U.S.C. § 9613(a). III. Barmet argues that the statutory language does not preclude constitutional challenges to CERCLA. Under 42 U.S.C. § 9613(b), federal district courts are given original jurisdiction in controversies arising under CERCLA, subject to the provisions of section 9613(a) and (h). As previously noted, section 9613(h) bars review prior to enforcement action by EPA with several enumerated exceptions. Barmet does not contend that any specific exception applies. Rather, Barmet argues that this statutory prohibition applies only to “administrative decisions” and not “constitutional challenge[s] to the entire CERCLA statutory scheme.” In support of its position, Bar-met cites several decisions holding that CERCLA does not bar constitutional challenges prior to EPA enforcement. These decisions were all rendered before SARA, which amended CERCLA to include the addition of section 9613(h). In contrast, EPA argues that Congress passed section 9613(h) to foreclose interpretations allowing pre-enforcement review of constitutional challenges. We agree. Before SARA, there were two conflicting lines of cases interpreting the power of a district court to entertain constitutional challenges to CERCLA prior to any enforcement action by EPA. Compare Aminoil, Inc. v. EPA, 599 F.Supp. 69, 72 (C.D.Cal.1984) (finding subject matter jurisdiction) and SCA Serv. of Indiana, Inc. v. Thomas, 634 F.Supp. 1355, 1359 (N.D.Ind.1986) with Lone Pine Steering Comm. v. EPA, 600 F.Supp. 1487 (D.N.J.1985) (holding that there was no subject matter jurisdiction), aff'd, 777 F.2d 882 (3d Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). Our circuit, in J. V. Peters & Co. v. EPA, 767 F.2d 263 (6th Cir.1985), held that there was no cause of action to challenge EPA’s actions under CERCLA before EPA sued for liability under 42 U.S.C. § 9607(a). The plaintiffs in J. V. Peters claimed that lack of pre-enforcement review violated their due process rights. We held that the plaintiffs “can suffer no deprivation until the" }, { "docid": "2153659", "title": "", "text": "environment and the populous.”). To this end, courts have consistently held that where judicial review will delay remedial and removal clean up activities, they are barred from reviewing response actions prior to an attempt by the EPA to enforce its orders or allegations of liability. For example, in Lone Pine Steering Committee v. EPA, a number of PRPs — seeking to stop the EPA from implementing its remedial plan — filed a “declaratory judgment action, alleging that the EPA’s plan was too costly, the agency had failed to evaluate [their] proposal, and the Record of Decision contained inaccurate technical data and erroneous assumptions resulting in du-plicative and unnecessary corrective measures.” 777 F.2d 882, 884 (3d Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). The district court dismissed their action and the circuit court affirmed the district court’s dismissal, reasoning that “although not explicitly stated in the statute [CERCLA], we find in § 9604 an implicit disapproval of pre-enforcement judicial review.” Id. at 886-87 (“The statutory approach to the problem of hazardous waste is inconsistent with the delay that would accompany pre-enforcement review.”); see also Wagner Seed Co. v. Daggett, 800 F.2d 310, 315 (2d Cir.1986) (where appellant sought a preliminary injunction against EPA order to either clean up a site or pay penalties, district court “lacks jurisdiction to consider the appropriateness of appellant’s get of God defense.”); Wheaton Ind. v. United States, 781 F.2d 354, 357 (3d Cir.1986) (“CERCLA precludes judicial review of the EPA’s actions in connection with remedying and cleaning up hazardous waste sites until the EPA brings suit for the costs incurred.”); Barnes v. United States Dist. Court for the W. Dist. of Wash., 800 F.2d 822 (9th Cir.1986) (order issued directing district court to dismiss case because CERCLA “does not authorize pre-enforcement review of [EPA] orders.”). Section 113(h) of SARA, enacted in 1986, codified earlier case law limitations on “pre-enforcement” review of remedial and removal actions. Cases since SARA have recognized Congress’ obvious intent to preclude review in relation to removal and remedial actions except in the limited circumstances described in" }, { "docid": "1090804", "title": "", "text": "of 1979 showed severe soil contamination. In the following year, DEP performed additional tests, installed monitoring wells, and completed a surface cleanup of the site. DEP did not begin any cleanup for potentially contaminated groundwater because further testing was necessary to determine the extent of the problem. The problem of groundwater contamination is particularly acute because the site is on top of the aquifer providing water for about 60% of the Cape May County population. In 1984, DEP informed Wheaton that it might be a potentially responsible person for the hazardous waste contamination at the Williams site. After unsuccessful negotiation between DEP and Wheaton about the design and implementation of a RI/FS of the Williams site, DEP and EPA entered into a cooperative agreement under section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9604 (1982). The agreement provided that EPA would provide money to DEP to conduct the necessary RI/FS of the Williams site from the Hazardous Substance Response Trust Fund (Superfund), 42 U.S.C. § 9631, which makes public money available for a variety of environmental cleanup costs. Wheaton then filed this suit seeking a declaratory judgment and preliminary injunction which, inter alia, would enjoin the expenditure of the Superfund money on this project. Negotiations among Whea-ton, DEP and EPA continued but no settlement was reached. EPA moved to dismiss Wheaton’s complaint for lack of subject matter jurisdiction or for summary judgment. Wheaton predicated jurisdiction either under CERCLA, 42 U.S.C. § 9613(b), or the Administrative Procedure Act, 5 U.S.C. § 704. The district court granted the motion to dismiss on the ground that CERCLA does not allow judicial review before a cost recovery action and that the EPA/DEP’s refusal to allow Wheaton to perform the RI/FS was not final agency action subject to judicial review under the APA. II. While the appeal was pending, this court issued its opinion in Lone Pine Steering Committee v. United States Environmental Protection Agency, 711 F.2d 882 (3d Cir.1985). There we held that judicial review is not available under CERCLA until the EPA files suit" }, { "docid": "1030462", "title": "", "text": "and the EPA immediately took removal and remedial action to clean up the site. The court issued a written opinion on February 17,1984, and plaintiffs appealed. If plaintiffs have a cognizable claim at this point, it must be under the Administrative Procedures Act, which states that “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. The agency determination to take response action under section 104(a) of the Act, 42 U.S.C. § 9604(a), is not explicitly made reviewable by statute, nor do we believe that such a cause of action should be inferred from the Act. To the contrary, explicit causes of action are allowed in sections 106 and 107, 42 U.S.C. §§ 9606, 9607, but none is provided for in section 104. Because the Act’s primary purpose is “the prompt cleanup of hazardous waste sites,” Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir.1985), allowance of a cause of action prior to a response action would debilitate the central function of the Act. Lone Pine Steering Committee v. EPA, 600 F.Supp. 1487, 1495 (D.N.J.1985); accord Aminoil, Inc. v. EPA, 599 F.Supp. 69, 71 (C.D.Cal.1984). Additionally, Congress is now considering legislation to provide explicitly that judicial review of response actions is unavailable, S. 51, 99th Cong., 1st Sess. (1985), and the Senate Report indicates this as a clarification of existing law: Pre-enforcement review Response actions or orders under section 104 and orders under section 106 may be subject to judicial review at the time the government seeks cost recovery or acts to enforce the order and collect penalties for noncompliance. This amendment clarifies and confirms that response actions and orders are not subject to judicial review prior to that time. As several courts have noted, the scheme and purposes of CERCLA would be disrupted by affording judicial review of orders or response actions prior to commencement of a government enforcement or cost recovery action. See, e.g., Lone Pine Steering Committee v. EPA, 600 F.Supp. 1487 (D.N.J.1985). These cases" }, { "docid": "1030461", "title": "", "text": "were stored in some 800 metal drums, many of them leaking, some inside an unsecured building and others outside. Cattle grazed within a few feet of the east side of the site, and corn was grown immediately to the west of the property line; children walked past the site on their way to a school less than IV2 miles away. After the Ohio Environmental Protection Agency found that state court proceedings were unsuccessful in getting the site cleaned up, it contacted the United States Environmental Protection Agency (EPA). The EPA was unable to negotiate an acceptable cleanup plan with J.V. Peters and determined to take action under section-104(a)(1) of the Act, 42 U.S.C. § 9604(a)(1). J.V. Peters and related parties then brought this action to prevent the EPA from taking action, claiming that they would automatically be made liable for cleanup costs under section 107(a) of the Act, 42 U.S.C. § 9607(a), without a hearing and without an adequate remedy at law. The district court dismissed the case from the bench on November 18, 1983, and the EPA immediately took removal and remedial action to clean up the site. The court issued a written opinion on February 17,1984, and plaintiffs appealed. If plaintiffs have a cognizable claim at this point, it must be under the Administrative Procedures Act, which states that “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. The agency determination to take response action under section 104(a) of the Act, 42 U.S.C. § 9604(a), is not explicitly made reviewable by statute, nor do we believe that such a cause of action should be inferred from the Act. To the contrary, explicit causes of action are allowed in sections 106 and 107, 42 U.S.C. §§ 9606, 9607, but none is provided for in section 104. Because the Act’s primary purpose is “the prompt cleanup of hazardous waste sites,” Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir.1985), allowance of a cause of action prior to" } ]

[ { "docid": "23173847", "title": "", "text": "Date Precludes Prosecution Under 18 U.S.C. § m Even if his prosecution was not precluded by judicial estoppel as he asserts, Defendant still argues that the essential elements of the § 664 claim were not proven. Defendant’s argument rests upon the premise that the determination of a plan termination date as of February 13, 1991, terminated the 6141 Plan, which removed an essential element from the § 664 claim. Because we find that establishment of a retroactive termination date does not decriminalize a defendant’s conduct subsequent to that date, we reject Defendant’s argument. Section 664 criminalizes the conduct of “[a]ny person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use or to the use of another, any of the moneys, funds, securities, premiums, credits, property, or other assets of any employee welfare benefit plan.... ” 18 U.S.C. § 664. An employee welfare benefit plan is defined as “any employee benefit plan subject to any provision of title I of [ERISA].” 18 U.S.C. § 664 (emphasis added). To violate § 664, a defendant must steal from an employee-benefit plan, for there is “no indication that § 664 was intended to apply to any funds other than those governed by ERISA.” United States v. Bell, 22 F.3d 274, 276 (11th Cir.1994). A terminated plan is no longer subject to any provision of Title I of ERISA, see Trippet v. Smith, 592 F.2d 1112, 1113 (10th Cir.1979), however, an employee-benefit plan may not be terminated except by the procedure outlined in 29 U.S.C. § 1341. Phillips v. Bebber, 914 F.2d 31, 34 (4th Cir.1990). Until an employee-benefit plan has been terminated, the duties and protections of Title I continue to apply to the plan. See Waller v. Blue Cross of California, 32 F.3d 1337, 1343 (9th Cir.1994); see also Martin v. Lundberg, No. CA3-88-2470D, 1991 WL 85892 (W.D.Tex.1991) (applying Title I fiduciary standards to plan undergoing termination). The applicability of Title I fiduciary and criminal protections to a terminating ERISA plan is a question of first impression in this circuit. Defendant contends that an essential element of the" } ]

[ { "docid": "9400269", "title": "", "text": "EBEL, Circuit Judge. Plaintiffs-appellants (“appellants”), former employees of Total Petroleum (“Total”), sued Total, the pension plan it sponsored (“Plan”), and the Plan’s fiduciaries (collectively “appellees”) under the Employee Retirement Insurance Security Act of 1974 and its amendments (“ERISA”) on the ground that Total unlawfully amended the Plan in a way that reduced the appellants’ “accrued benefits.” The district court granted appellees’ motion for summary judgment and dismissed appellant’s case. We now affirm. BACKGROUND The appellants are all former employees of Total at its facility in Arkansas City, Kansas, who were terminated in 1996 when Total closed its Arkansas City petroleum plant. At termination, appellants were all under the age of 55 years-old and “fully vested” participants in Total’s Retirement Plan for Hourly-Rated Employees within the bargaining units represented by Local 642 of the International Union of Operating Engineers, AFL-CIO. The Plan qualifies as an employee benefit plan under ERISA. See 29 U.S.C. § 1002(3). Total is the Plan sponsor within the meaning of 29 U.S.C. § 1002(16)(B), and a fiduciary of the Plan within the meaning of 29 U.S.C. § 1002(21)(A). Total effectuated the original Plan on April 1, 1978 (“1978 Plan”). Section 6.02 of the 1978 Plan stated: “In the event of termination of service of any participant for any reason other than his death or retirement under the Plan, he shall be entitled, in lieu of any other benefits under the Plan, to his vested percentage in a deferred pension as determined under the terms of Section 6.03, [depending on the employee’s age and years of service].... ” 1978 Plan § 6.02. Section 6.03 provides for a “deferred severance benefit” which is defined as “the participant’s vested interest ... in his ‘accrued retirement income’ determined at the date of his termination. The participant’s ‘accrued retirement income’ shall consist of the amount of normal retirement income accrued for his credited service as defined in Section 4.02 to the date of termination of his service.” Id. § 6.03. Section 6.04 outlined the payment method for “deferred severance benefits”: [MJonthly installments ... of one-twelfth of the annual amount computed under Section" }, { "docid": "3601296", "title": "", "text": "L.Ed.2d 607 (1982). Nor is there any provision in the plan that entitles participants to a lump-sum option, or anything other than an annuity. Where the administrator of the plan has discretion to determine the form of benefits, the exercise of that authority in a non-abusive manner should not be overturned. Batchelor, 877 F.2d at 442-43. For the reasons stated in this opinion, as well as the reasons given by the district court, we AFFIRM. . On May 27, 1987, the district court certified a class action as to those former employees who were nonvested participants in the PALIC Retirement Plan. The district court declined to certify the vested participants as a class. . 26 U.S.C.A. § 411(d)(3) states: (3) Termination or partial termination; discontinuance of contributions. — Notwithstanding the provisions of subsection (a), a trust shall not constitute a qualified trust under section 401(a) unless the plan of which such trust is a part provides that— (A) upon its termination or partial termination, or (B) in the case of a plan to which section 412 does not apply, upon complete discontinuance of contributions under the plan, the rights of all affected employees to benefits accrued to the date of such termination, partial termination, or discontinuance, to the extent funded as of such date, or the amounts credited to the employees’ accounts, are non-forfeitable. This paragraph shall not apply to benefits or contributions which, under provisions of the plan adopted pursuant to regulations prescribed by the Secretary to preclude the discrimination prohibited by section 401(a)(4), may not be used for designated employees in the event of early termination of the plan. . The PALIC Plan provides that employees become fully vested after completing 10 years of employment at PALIC. Any employee who leaves PALIC’s employ prior to attaining 10 years is considered non-vested which indicates that any amounts credited to the employee’s pension account are forfeitable. . 29 U.S.C. § 1132(a) states: A civil action may be brought— (1) by a participant or beneficiary— (A) for the relief provided for in subsection (c) of this section, or (B) to recover" }, { "docid": "5392209", "title": "", "text": "the papers submitted whether Plaintiff voluntarily terminated his employment. . Plaintiff alleges that Defendant improperly amended the 1978 version of the Plan in violation of 29 U.S.C. 1054(g), which prohibits the reduction of an accrued benefit by an amendment. Complaint ¶¶ 27-28. Disability benefits are employee welfare benefits, 29 U.S.C. § 1002(1), which are not subject to ERISA’s vesting and accrual provisions. Schonholz v. Long Isl. Jewish Med. Center, 87 F.3d 72, 77 (2nd Cir.1996) (citation omitted); Moore v. Metropolitan Life Ins. Co., 856 F.2d 488, 491 (2nd Cir.1988). \"[A]n employer has the right to terminate or unilaterally to amend the plan at any time.” Schonholz, 87 F.3d at 77 (citation omitted). Accordingly, ERISA’s prohibition against eliminating or reducing an \"accrued benefit\" generally does not apply to disability benefits. Williams v. Plumbers & Steamfitters Local 60, 48 F.3d 923, 925 (5th Cir. 1995) (citing Harms v. Cavenham Forest Indus., 984 F.2d 686, 691 n. 6 (5th Cir. 1993), cert. denied, 510 U.S. 944, 114 S.Ct. 382, 126 L.Ed.2d 331 (1993)). Nonetheless, for purposes of the present motions, and as agreed to by Defendant, the Court will apply the provisions of the 1978 Plan. . 29 U.S.C. § 1002(3). . Ancillary benefits are employee welfare benefits, which include health, disability and death benefits. 29 U.S.C. § 1002(1). . ERISA mandates that employees who meet certain requirements become entitled to a fixed and irrevocable pension benefit. 29 U.S.C. § 1053. . 29 U.S.C. §§ 1022(a)(1), 1024(b). . Plaintiff does not allege that any terms contained in the SPD are ambiguous, i.e. susceptible to more than one meaning, but instead, argues that the SPD is misleading and insufficient under 29 U.S.C. § 1022 because it does not contain enough information regarding his benefits under the Plan. . In Firestone, the Supreme Court clarified the statutory definition of \"participant” in the context of whether a former employee was a \"participant\" entitled to plan information under ERISA, 29 U.S.C. § 1024(b)(4). . See e.g. Mullins v. Pfizer, Inc., 23 F.3d 663, 667 (2nd Cir.1994); ERISA Litigation Reporter, The Circuit Courts Grapple with the ‘Participant’ Concept" }, { "docid": "22993325", "title": "", "text": "plan is unlikely to have funds sufficient both to pay vested benefits and to provide a reversion large enough to motivate the plan’s termination. When a plan is overfunded or adequately funded, however, a partial or full termination will result in a potential reversion. To the partial termination determination, the district court should thus apply the special rule’s requirements. First, the district court should determine whether the 1984 amendment resulted in a cessation or decrease of future benefit accruals. Second, the district court should determine whether as a result of any cessation or decrease in future benefit accruals a potential for reversion was created or increased. Because a factual determination should be made by the district court, we will reverse the district court’s judgment dismissing the employees’ partial termination claims and remand for findings as to whether the special rule was satisfied and for any further proceedings following from those findings. VI. The validity of the employees’ claims based on section 204(g), 29, U.S.C. § 1054(g), to non-contributory and contributory early retirement benefits under BERIP depends solely on the actual date of adoption of the 1984 amendment. ERISA permitted the reduction of early retirement benefits prior to July 31, 1984, but not after. See Bencivenga v. Western Pa. Teamsters & Employers Pension Fund, 763 F.2d 574 (3d Cir.1985); Pub.L. 98-397, title III, § 302(d)(1) (“the amendments made by section 301 [amending 29 U.S.C. § 1054(g) ] shall apply to plan amendments made after July 30, 1984”). Because an ERISA plan document may not be amended informally, see Confer v. Custom Eng’g Corp., 952 F.2d 41 (3d Cir.1991) (per cu-riam); Hamilton v. Air Jamaica, Ltd., 945 F.2d 74 (3d Cir.1991), a formal amendment adopted after July 30, 1984 would be ineffective, even if dated retroactively. See Confer (sponsor could not amend plan retroactively to deny benefits). It appears, however, that the employees failed to raise this argument in the district court. Their complaint alleges July 1, 1984 as the effective date of amendment and is silent as to the date the amendment was adopted. The employees did not respond in their" }, { "docid": "615318", "title": "", "text": "each participant and for benefits based solely upon the amount contributed to the participant’s account — \", ERISA § 3(34), 29 U.S.C.A. § 1002(34) (West.Supp.1987). See Delgrosso v. Spang & Co., 769 F.2d 928, 929-30 (3d Cir.1985) (distinguishing defined benefit and defined contribution plans). Second, although ERISA permits plans (both defined benefit and defined contribution) to include employee contribution, the Ambassador Plan was not such a plan. Instead, the Ambassador Plan was funded entirely by the employer. Therefore, Ambassador was solely responsible for maintaining sufficient funds in the pension fund to provide for each vested employee’s accrued benefits. . Indeed, the IRS may determine that the April 4 freeze was, for tax purposes, a partial termination vesting benefits in certain unvested employees. See infra n. 13. . The only other method for terminating a plan, not applicable in this case, involves adoption of an amendment that transforms the plan into an unqualified plan under ERISA. See ERISA § 4041(f), recodified as, 29 U.S.C.A. § 1341(e) (West.Supp.1987). . Chait also relies on Audio Fidelity Carp. v. Pension Benefit Guaranty Corp., 624 F.2d 513 (4th Cir. 1980), which we find clearly distinguishable because the attempted amendment of the plan to return surplus to the employer occurred after the plan was fully terminated. .Chait also contends that the partial termination effectuated by the freeze vested the “benefits\" of the Plan in the employees pursuant to § 411(d)(3) and that the right to the surplus is one of those \"benefits.” Bernstein, in addition to noting that Chait raises this question for the first time on appeal, rejoins that the right to the Plan’s surplus can in no way be construed as a “benefit accrued to the date of termination” within the meaning of § 411(d)(3). Bernstein argues that the surplus in the Ambassador Plan cannot rightfully be regarded as an anticipated benefit that had accrued on the employees' behalf. See infra typescript at p. 23. In addition, Bernstein notes that under § 11.04 of the Plan, even if a partial termination had occurred, the only consequence could be the vesting of an individual’s benefits" }, { "docid": "1791671", "title": "", "text": "pre-ERISA plan agreement did “not make potential pensioners third-party beneficiaries of any understanding between the [employer] and the Commissioner.” Id. at 686. Consequently, the court refused to apply the Treasury Department test for partial termination. Id. at 685-86. This analysis has not been applied by the Eleventh Circuit or the former Fifth Circuit to a plan established after the enactment of ERISA. Certainly, it has not been applied under circumstances similar to those in the instant case. The employer in Craig was continuing to operate its business. The employees terminated as a consequence of one plant closing were attempting to incorporate the Treasury definition of partial termination into the plan agreement so that they could obtain distribution of the accrued benefits contributed by the employer to the plan as deferred compensation during their employment. There was no question that the employer was continuing to operate the plan for the benefit of current employees, and that the plan trustees and administrators were executing their legal and contractual responsibilities. In the instant case, however, no plan sponsor or board of directors is available to declare termination of the plans or discontinuance of contributions. No plan trustee or administrator has made any effort to resolve the status of the plans or arrange for benefit distribution. Moreover, unlike the situation in Craig, in this case the Treasury Department definition of termination has been incorporated into the plan agreements. The circumstances constituting plan termination appear to have occurred, but the entity responsible for so declaring no longer exists. Thus, the court is not seeking to use the tax regulations to determine whether and under what circumstances a termination can occur; it only needs to decide when the termination becomes effective. Accordingly, the court determines it may follow the timing provisions of the tax regulations without violating the principles established in Craig. Section 401(a)(7) of the Code, 26 U.S.C. § 401(a)(7), provides that a pension or profit sharing trust will not be qualified for tax purposes unless it satisfies the minimum vesting requirements of 26 U.S.C. § 411. Subsection (d)(3) of Section 411 establishes a minimum" }, { "docid": "23066938", "title": "", "text": "benefits determined as of the closing date payable with respect to Imprimis Employees listed on Attachment.” Thereafter, Seagate established the “Seagate Technology, Inc. Long Term Disability Plan” for Imprimis employees “previously covered by the Control Data Corporation Long Term Disability Plan.” The Control Data LTD Plan specifically states that “the Plan shall terminate as to a particular Employer upon the giving of notice by such Employer to the Trustee, executed in the manner of an amendment.” The plan also provides: “Upon termination of the Plan, the Trustee shall continue to hold the Trust Assets and make distribution thereof at the times and in the manner heretofore provided, until the Trust Assets are depleted thereby.” ERISA provides strict obligations and procedures regarding termination of pension plans, 29 U.S.C. §§ 1103(d)(1), 1341, 1342, but provides no guidelines to determine when a plan terminates. See In re Syntex Fabrics, Inc. Pension Plan, 698 F.2d 199, 203 (3d Cir.1983) (suggesting that a plan terminates “when the employer’s obligation to fund the plan ceases, [and] employees can no longer accrue benefits”). The Syntex fac tors are grounded in the essential purposes of ERISA: to prevent an employee from losing accrued, vested benefits in the event the employer terminated the pension plan. Nachman, 446 U.S. at 374-75, 100 S.Ct. at 1732-33. With respect to termination of a welfare plan, ERISA only requires that “[t]he assets of a welfare plan which terminates shall be distributed in accordance with the terms of the plan, except as otherwise provided in the regulations of the Secretary.” 29 U.S.C. § 1103(d)(2). Because ERISA welfare plans do not need to vest or be funded, the rules underlying terminating a pension benefit plan have little application. Unfortunately, there is a scarcity of guidance on questions of welfare plan termination. The two cases cited by plaintiffs for partial plan terminations both involve pension plan obligations, where in order to maintain a tax qualified plan, termination triggers specific ERISA obligations regarding accrued benefits. See Gluck v. Unisys Corp., 960 F.2d 1168 (3d Cir.1992); Kreis v. Charles O. Townley, M.D. & Assoc., P.C., 833 F.2d 74" }, { "docid": "14334423", "title": "", "text": "SAP (as amended by the Gulf Plan), give plaintiffs a current right to surplus assets. Complete plan terminations are governed by § 4041 of ERISA, 29 U.S.C. § 1341, which, prior to the Single-Employer Pension Plan Amendments Act of 1986, provided two methods of terminating an ERISA plan. First, a plan administrator could file a notice of termination with the PBGC and await its approval that plan assets were sufficient to discharge plan obligations. Upon receiving a sufficiency notice, the plan could be terminated. (The 1986 Act now requires 60 days’ notice to participants, and no notice of sufficiency is issued.) Second, a plan administrator may terminate a plan by adopting an amendment that transforms the plan into an individual account plan under ERISA. The distribution of assets upon a plan termination is governed by § 4044 of ERISA, 29 U.S.C. § 1344. Neither the language of this statute nor its legislative history indicates that Congress intended plan participants to receive surplus plan assets prior to a complete plan termination. Van Orman v. American Ins. Co., 680 F.2d 301, 313 (3d Cir.1982). Nor does the Code create an entitlement to a distribution of plan assets before a complete plan termination. Code § 411(d)(3) only requires that upon a partial termination accrued employee benefits be vested and employee accounts be nonfor-feitable. “[T]he purposes and policies of partial terminations under the tax code do not apply in the context of vested employees attempting to gain plan surplus.” Chait, 835 F.2d at 1021. Although neither ERISA nor the Code creates a right to a distribution of surplus assets before a complete plan termination, such a right can exist under the law of contract if provided by a plan. Plaintiffs argue that § 10.A.2 of the Gulf Plan provides such a right. The Court is not persuaded by this argument. Section 10.A.2 is an amalgamation of the language found in or required by Code § 411(d)(3) and § 4044(a) of ERISA, 29 U.S.C. § 1344(a). The first paragraph of § 10.A.2 is very similar to Code § 411(d)(3). This paragraph states: “Upon termination of" }, { "docid": "3275353", "title": "", "text": "JOHN R. GIBSON, Senior Circuit Judge. The district court granted summary judgment in favor of the seven former employees in this action against their former employer, John Hancock Mutual Life Insurance Company. The complaint seeks enhanced early retirement benefits under the company’s pension plan. The question at issue is whether a 1994 amendment to the plan, making early retirement'with full benefits available at age 56 to those with 25 yeahs of service; applies to former employees whose jobs ended 'before they retired, or only to those who are still employed when they retire. John Hancock appeals, and the former employees cross-appeal the district court’s calculation of attorney’s fees. We reverse and remand for further proceedings consistent with this opinion. , FACTS John Hancock terminated the employment of the seven plaintiffs in March 1997 as a result of John Hancock’s sale of part of its business to UNICARE of California, Inc. Despite their termination, the former employees remained vested participants in John Hancock’s ERISA-qualified pension plan. The company established the John Hancock Mutual Life Insurance Company Pension Plan in 1938. The Plan has been amended a number of times since it was established, and these amendments have periodically been incorporated in restatements of the Plan. The 1995 Restatement is at issue in this case; it was preceded by a 1976 Restatement. The Internal Revenue Service issued a favorable determination letter for the 1995 Restatement, meaning that the form of the Plan document complies with the Internal Revenue Code requirements for qualified plans. The parties agree that the Plan was amended on October 11, 1994. Hancock asserts that this amendment was among those included in the Plan’s 1995 Restatement, but the former employees refer to the 1995 Restatement as the “Partial Plan” and assert that it is non-integrated and therefore the 1994 amendment must be considered in addition to the 1995 Restatement. The 1994 amendment lowered from 55 to 50 the age at which a qualifying Plan participant could elect early retirement at reduced benefits. Employees who were at least 56 years old with 25 years of service became eligible for full" }, { "docid": "4457823", "title": "", "text": "Republic-Franklin Incorporated, and then Franklin Capital. As a result of this sale, 102 employees of Republic-Franklin Insurance became employees of Utica. 13 management employees remained with Republic-Franklin Incorporated, now Franklin Capital. After January 1, 1983, the former Republic-Franklin Insurance employees were enrolled in Utica’s pension plan. On January 14, 1983, the Plan Administrators effected a partial termination of the Plan by purchasing annuities for the 102 former employees of Republic-Franklin Insurance in the amount of their vested benefits. The majority of the annuities were actually paid for by January 27, 1983, but a few were not actually paid for until as late as December 5, 1983. After the partial termination of the Plan, Franklin Capital said that it found the expenses for maintaining the Plan for 13 participants prohibitive, and thus decided to terminate the Plan. On July 20, 1983, Franklin Capital amended the Plan, so that assets remaining in the Plan after the distribution of vested benefits and termination of the Plan would not revert to Franklin Capital. Instead, these assets would be distributed to participants and beneficiaries in the Plan. This amendment was approved by the Pension Benefit Guaranty Corporation. On July 31, 1983, the Plan was dissolved. On August 8, 1984, the remaining 13 employees received their vested benefits. The Plan, as amended, provided in relevant part: Upon the direction of the Administrator at any time, the Trustee shall liquidate the Trust Fund and shall distribute to each Participant, Former Participant and Beneficiary an amount equal to the value of his allocation as of the date such liquidation is directed .... (emphasis added). The right to residual assets in the Plan thus vested in Plan participants at the time of the Plan termination. After the distribution of vested benefits to the 13 management employees, residual assets of about $1,400,000 re mained in the Plan and these residual assets were also divided among the 13 remaining management employees. On August 28, 1987, some of the 102 employees terminated from the Plan brought suit under 29 U.S.C. § 1132 as a class action on behalf of all 102 employees" }, { "docid": "1075410", "title": "", "text": "percentage established by negotiations. The Debtor maintained qualified pension plans pursuant to the provisions of the Employee Retirement Income Security Act (ERISA). These plans have not been terminated in accordance with ERISA, which provides the exclusive method for termination. See 29 U.S.C. § 1341(a)(1). Under ERISA, except upon termination, the assets of the pension plans “shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan.” 29 U.S.C. § 1103(c)(1). The termination date of the pension plans is governed by 29 U.S.C. § 1348, and depends on the occurrence of certain events, which have yet to occur. Sometime in early 1988, the Debtor incorporated its several operating divisions, and during July, August, and October of 1988, the Debtor sold the stock in eight of its nine major subsidiaries. On the date of the sale of the stock in the subsidiaries, the pension plans retained by the Debtor were effectively frozen. No new employees could enter the pension plans, and the interest of the employees who were participating in the plans became fully vested as of that date. The purchasers of the stock in the subsidiaries established new pension plans to cover the former employees of Singer who became employees of the corporations who acquired controlling interest in the corporations from the date of the stock purchase forward. As a result, the white collar employees, formerly employed by the Debtor, became participants in two qualified pension plans, one previously maintained by the Debtor which became frozen, and the other established by the purchasers of the stock in the subsidiaries. Soon after the Debtor filed a petition for relief under Chapter 11 of the Bankruptcy Code, it filed a Motion and sought authority of this Court to merge the pension plans for its former subsidiaries, which plans the Debtor retained after the stock sale, with a pension plan for certain retired employees which the debtor also retained. It is without dispute that the pension plans of the" }, { "docid": "6142114", "title": "", "text": "requires that a plan, in order to be qualified, provide that “upon its termination or partial termination ... the rights of all affected employees to benefits accrued to the date of such termination, [or] partial termination ... to the extent funded as of such date, or the amounts credited to the employees’ accounts, are nonforfeitable.” As previously noted, all participants in the A & B Plan who were terminated from Gulf during the March 1984-July 1986 period, and all former Gulf employees employed by Chevron on July 1, 1986, have been fully vested in their accrued A & B Plan benefits. Nothing in ERISA or the Internal Revenue Code mandates a distribution of any surplus assets on a partial termination or requires any particular provision in a plan in order to avoid such a result. See, e.g., Chait v. Bernstein, 835 F.2d 1017, 1021 (3d Cir.1987) (in a partial termination § 411(d)(3) “should not be extended to apply to surplus assets ... in a defined benefit plan”); Van Orman v. American Insurance Co., 680 F.2d 301, 313 (3d Cir.1982) (only rights to surplus are at complete termination under § 4044); Walsh v. Great Atlantic & Pacific Tea Co. Inc., 96 F.R.D. 632, 652 (D.N.J.1983) (“partial termination[ ] ... would only result in those benefits defined in the ‘Benefits’ portion of the plan becoming non-forfeitable_ The persons affected by the partial termination would not become entitled then and there to a pro rata share of any excess assets. As long as the remainder of the plan remains ongoing, ‘excess assets’ is a meaningless concept, since the amount of any surplus can only be calculated after a complete termination of the plan”), aff'd, 726 F.2d 956 (3d Cir.1983). Nor can we construe “benefits accrued” under § 411(d)(3) to encompass a right, not specified in the plan itself, to a share of surplus assets in a defined benefit employer funded plan. Treasury Regulation 1.411(a)-7(a) provides that in the case of a defined benefit plan “accrued benefit” for purposes of § 411 generally “refers only to pension or retirement benefits” and does “not include" }, { "docid": "22391572", "title": "", "text": "§ 404(a)(1)(D), 29 U. S. C. § 1104(a)(1)(D); amending the Plan in 1991 to create the noncontributory structure violated § 406(a)(1)(D), 29 U. S. C. § 1106(a)(1)(D); and using the surplus assets to fund noncontributory benefits for those who had never contributed to the Plan violated §404, 29 U. S. C. §1104. Finally, respondents claimed that the alleged termination of the Plan had violated § 4044(d)(3)(A), 29 U. S. C. § 1344(d)(3)(A), which requires that residual assets in a terminated plan be distributed to its beneficiaries. The dissenting judge concluded that the District Court properly dismissed the complaint. He reasoned that an amendment to a pre-existing plan does not affect the availability of the plan’s pool of assets for funding pre-existing obligations and cannot be characterized as a termination; interpreted Spink to stand for the proposition that the act of amending a plan does not trigger fiduciary duties; and observed that employees who contribute to a defined benefit plan do not have an interest in that plan’s surplus. The majority’s decision is in tension with our decision in Spink, where we held that “the act of amending a pension plan does not trigger ERÍSA’s fiduciary provisions,” 517 U. S., at 891, and with other Circuits’ decisions. See, e. g., Brillinger v. General Elec. Co., 130 F. 3d 61 (CA2 1997), cert. pending, No. 97-1834; American Flint Glass Workers Union v. Beaumont Glass Co., 62 F. 3d 574 (CA3 1995); Malia v. General Elec. Co., 23 F. 3d 828 (CA3), cert. denied, 513 U. S. 956 (1994); Johnson v. Georgia-Pacific Corp., 19 F. 3d 1184 (CA7 1994); Phillips v. Bebber, 914 F. 2d 31 (CA4 1990) (per curiam). We granted certiorari, 523 U. S. 1093 (1998), and now reverse. II Our review of the six claims recognized by the Ninth Circuit requires us to interpret a number of ERISA’s provisions. As in any ease of statutory construction, our analysis begins with “the language of the statute.” Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 475 (1992). And where the statutory language provides a clear answer, it ends there" }, { "docid": "6142113", "title": "", "text": "Co., 555 F.Supp. 257, 260 (D.D.C.1983), aff'd mem., 729 F.2d 863 (D.C.Cir.1984) (“the common law of trusts provides that an employer can retain such a surplus”). Plaintiffs claim that the language of the A & B Plan did not contain an explicit reversion provision as they assert is required by section 4044(d)(1), 29 U.S.C. § 1344(d)(1). They rely on Albedyll v. Wisconsin Porcelain Co. Revised Retirement Plan, 947 F.2d 246, 256 (7th Cir.1991) (“unless the plan specifically provides for reversion to the employer, surplus assets go to beneficiaries and participants”). However, we note that section 4044(d)(1) merely requires that a plan “provide[ ]” for distribution of surplus assets to an employer, it does not say that the provision must be specific, explicit or express. In any event, Albedyll is a total termination case, and section 4044(d)(1) does not address a partial termination. Internal Revenue Code section 401(a)(2) allows employer reversion only on complete termination. 26 U.S.C. § 401(a)(2) (only after satisfaction of all liabilities). See also 26 C.F.R. § 1.401-2(b)(l). Internal Revenue Code section 411(d)(3) requires that a plan, in order to be qualified, provide that “upon its termination or partial termination ... the rights of all affected employees to benefits accrued to the date of such termination, [or] partial termination ... to the extent funded as of such date, or the amounts credited to the employees’ accounts, are nonforfeitable.” As previously noted, all participants in the A & B Plan who were terminated from Gulf during the March 1984-July 1986 period, and all former Gulf employees employed by Chevron on July 1, 1986, have been fully vested in their accrued A & B Plan benefits. Nothing in ERISA or the Internal Revenue Code mandates a distribution of any surplus assets on a partial termination or requires any particular provision in a plan in order to avoid such a result. See, e.g., Chait v. Bernstein, 835 F.2d 1017, 1021 (3d Cir.1987) (in a partial termination § 411(d)(3) “should not be extended to apply to surplus assets ... in a defined benefit plan”); Van Orman v. American Insurance Co., 680 F.2d" }, { "docid": "1791670", "title": "", "text": "of authority for rules governing plan termination is the Internal Revenue Code and the regulations and revenue rulings promulgated thereunder. To be qualified for tax purposes, a pension or profit sharing plan must meet certain funding, distribution, and vesting requirements set forth in subchapter D of the Code, 26 U.S.C. §§ 401-419A. As part of its implementation of this subehapter, the Treasury Department has issued certain regulations regarding plan terminations. Use of the tax rulings, however, may not be permissible in this circuit. In Craig v. Bemis Co., 517 F.2d 677 (5th Cir.1975), the former Fifth Circuit ruled that plan participants in a collectively-bargained plan could not base their claims for benefits on an argument that their termination prior to vesting of their pension benefits violated the Internal Revenue Code requirements for vesting upon partial plan termination. The plaintiffs in Craig predicated this argument on a paragraph in the plan agreement which stated that the plan was to be conducted as a tax-qualified plan. Id. at 685. The court rejected their argument, reasoning that the pre-ERISA plan agreement did “not make potential pensioners third-party beneficiaries of any understanding between the [employer] and the Commissioner.” Id. at 686. Consequently, the court refused to apply the Treasury Department test for partial termination. Id. at 685-86. This analysis has not been applied by the Eleventh Circuit or the former Fifth Circuit to a plan established after the enactment of ERISA. Certainly, it has not been applied under circumstances similar to those in the instant case. The employer in Craig was continuing to operate its business. The employees terminated as a consequence of one plant closing were attempting to incorporate the Treasury definition of partial termination into the plan agreement so that they could obtain distribution of the accrued benefits contributed by the employer to the plan as deferred compensation during their employment. There was no question that the employer was continuing to operate the plan for the benefit of current employees, and that the plan trustees and administrators were executing their legal and contractual responsibilities. In the instant case, however, no plan sponsor" }, { "docid": "15821530", "title": "", "text": "or severance by the employer, of a group of employees who have previously been covered by the plan; and plan amendments which adversely affect the rights of employees to vest in benefits under the plan. (emphasis added). Matz alleges that a partial termination of the Plan occurred beginning in August, 1994 (with the sale of Hamilton) and ending in May, 1996. During that period, Household discontinued or sold Household Mortgage Services, Inc., various branches of Household Bank, F.S.B., and Alexander Hamilton Life Insurance Company. Matz believes that this series of corporate transactions were part of a single reorganization plan and resulted in the Plan’s partial termination. For that reason, he seeks to combine all of the terminations by Household in all of those years. He also seeks to count all fully vested employee terminations as well as non-vested employee terminations. The Plan, by contrast, contends that a partial termination analysis should look at individual plan years, not aggregated years. Furthermore, it argues that aggregation is inappropriate because there was no corporate reorganization that would justify such an approach. It also asks that only non-vested participants be counted. Finally, the Plan contends that any partial termination analysis must end on September 30, 1995, the date it issued a plan amendment vesting, fully and immediately, all participants. Pointing to the language of 26 U.S.C. § 411(d)(3), the Plan states that participants who separated from service after September 30, 1995 cannot be “affected employees” because all Plan accounts became non-forfeitable at that time. The parties briefed the issues to the District Court. The court, after careful analysis, ruled that both vested and non-vested participants could be counted to determine whether a partial termination occurred and that Matz could combine all terminations for 1994 through 1996. Matz v. Household International Tax Reduction Investment Plan, 1998 WL 851491 (N.D.Ill.1998); Matz v. Household International Tax Reduction Investment Plan, 1999 WL 754659 (N.D.Ill.1999). Upon the Plan’s motion, the rulings were certified for interlocutory appeal. Now before us are the questions: (1) whether, for purposes of determining if the Plan was “partially terminated,” the court’s analysis should include" }, { "docid": "11695567", "title": "", "text": "summary, we hold that no violation of section 1140 of ERISA is shown where the seller of a business terminates employment under the provisions of a collective bargaining agreement and the purchaser refuses to hire any of the employees because they refuse to accept a reduction of unaccrued employee benefits. C. Lack Of Notice Of The Termination Of The Collective Bargaining Agreement The Union Workers also contend that the notice of termination of employment did not terminate the rights to unaccrued benefits under the Master Agreement. The Master Agreement as amended was due to expire on August 31, 1985. No authority has been cited for the novel proposition that the right to unaccrued benefits survives a valid termination of employment after the business is sold. If this argument were meritorious, an employer would be required to continue to pay unearned benefits to his workers after he had gone out of business. We find nothing in ERISA that would support this theory or that would give an employee the right to unaccrued employee benefits after his job was lawfully terminated in accordance with a collective bargaining agreement. D. Breach Of Fiduciary Duty The Union Workers assert that Armour violated its fiduciary duties as an employee benefit plan administrator by threatening them with termination if they did not accept ConAgra’s demand for a reduction in unaccrued benefits. We disagree. This claim is fully answered by the Fourth Circuit’s decision in Sutton v. Weir-ton. The court in Sutton stated: Congress authorized an employer to administer its pension plan, and in the discharge of its duties with respect to the plan, the employer must satisfy the exacting fiduciary standards imposed by ERISA. Congress, however, has not prohibited an employer who is also a fiduciary from exercising the right accorded other employers to renegotiate or amend, as the case may be, unfunded contingent benefits payable before normal retirement age. The changes, accomplished in this manner, are not to be reviewed by fiduciary standards. Sutton, 724 F.2d at 410-11. In White v. Distributors Ass’n Warehousemen’s Pension Trust, 751 F.2d 1068 (9th Cir.1985), we observed: It is" }, { "docid": "1716992", "title": "", "text": "the employee’s services. To be sure, there are provisions in ERISA that are designed for the protection of an employee’s contributions to a pension plan. An employee’s contributions are always non-forfeitable, which means that the employee has a legally enforceable right to recover his contributions with interest, even if he leaves the plan before reaching normal retirement age. ERISA § 203(a)(1), 29 U.S.C. § 1053(a)(1). In addition, if a plan is terminated, participants are entitled to an equitable distribution of the surplus, with each share proportional to the individual participant’s contributions, as long as all other plan liabilities are first satisfied. 29 U.S.C. § 1344(d)(3). Except for these protections for employee contributions, ERISA limits an employee’s interest in a pension plan fund to his “accrued benefits,” which are the benefits defined under the terms of the plan. 29 U.S.C. § 1002(23); see also Johnson, 19 F.3d at 1189 (rejecting retirees’ claim that they were entitled to the same benefits increase as active employees when surplus resulted in part from retirees’ contributions, reasoning that because “a defined-benefit plan gives current and former employees property interests in their pension benefits but not in the assets held by the trust”). The ERISA provisions protecting employee contributions have no bearing on the question whether Hughes violated ERISA in amending its contributory plan to add a noncontributory benefit structure. On this point the majority and I are in sharp disagreement. The majority asserts that the distinction between the two types of pension plans is “critical” to the termination question, but offers no cogent reason why it is “critical” or even relevant. Opinion at 1294. The only authority cited by the majority is §§ 203 and 4044(d)(3)(A) of ERISA, 29 U.S.C. §§ 1053 and 1344(d)(3)(A), which — as discussed above — respectively establish minimum vesting requirements for accrued benefits derived from employee contributions, and provide that in the event a pension plan is terminated, any surplus assets attributable to employee contributions shall be distributed equitably to participants who have made contributions. But how do provisions governing nonforfeiture of accrued benefits, on the one hand, and distribution" }, { "docid": "20569857", "title": "", "text": "890 (2004). II. “Participant” Standing The rights of action that Coan seeks to assert are available only to — other than the Secretary of Labor — participants, beneficiaries, or fiduciaries of an employee benefit plan. 29 U.S.C. §§ 1132(a)(2) & (a)(3); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100-01 (2d Cir.2005); Connecticut v. Physicians Health Servs. of Conn., Inc., 287 F.3d 110, 121 (2d Cir.) (“[N]on-enumerated parties lack statutory standing to bring suit under [ERISA] even if they have a direct stake in the outcome of the litigation.”), cert. denied, 537 U.S. 878, 123 S.Ct. 77, 154 L.Ed.2d 133 (2002). Coan asserts that she is a plan participant. Before the district court and again on appeal, the defendants argue that Coan lacks statutory standing because at the time she brought suit she was no longer a participant in the KLC 401(k) plan for purposes of ERISA. After thoughtful consideration, the district court declined to decide that question. The court noted that “[t]hough the Second Circuit has not yet expressly addressed this issue, many federal courts have denied participant standing to former employees such as Ms. Coan where the plans in question have been terminated and their assets have been fully disbursed via lump sum distributions.” Coan I, 333 F.Supp.2d at 19. But it also noted that “there is support in Second Circuit case law for [a]broad ‘zone of interests’ approach to ERISA standing” that would allow Coan’s suit. Id. at 22 (citing Mullins v. Pfizer, 23 F.3d 663, 664, 668 (2d Cir.1994)). Given these countervailing considerations and its ultimate conclusion that Coan’s suit should be dismissed on other grounds, the court assumed without deciding that Coan was a “participant” under ERISA. Id. at -23. ERISA defines a “participant” as “any employee or former employee of an employer ... who is or may become eligible to receive a benefit of any type from an employee benefit plan.” 29 U.S.C. § 1002(7). The Supreme Court has explained that “[i]n order to establish that he or she ‘may become eligible’ for benefits, a claimant must have a colorable claim that (1)" }, { "docid": "16962303", "title": "", "text": "to layoff, in which to resume covered employment without forfeiting the prior service credit towards vesting. That allowance is known as the “rule of parity.” See 26 U.S.C. § 411(a)(6)(D) (1988) (Internal Revenue Code (IRC) provision); 29 U.S.C. § 1053(b)(3)(D) (1988) (parallel ERISA provision). Neither had returned to covered employment when the Plan terminated in 1985. Upon the Plan’s termination, its trustees distributed the Plan’s assets among those it deemed to be its participants. The Plan made no distribution to persons subject to the rule of parity, nor did it notify those persons of the termination. Flanagan and Missett eventually filed claims for benefits, but the Plan rejected those claims. The two then brought this action, in November 1990, on behalf of themselves and similarly situated former employees. The Plan had enjoyed “qualified” status under federal law. Qualified status afforded tax benefits to the employers and to the labor organizations that contributed to the Plan, but required that the Plan meet minimum standards contained in ERISA and the IRC. One of those standards provided that, upon a partial or complete termination of the Plan, accrued benefits of “affected employees” become nonforfeitable. 26 U.S.C. § 411(d)(3) (1988). The Plan document implemented that standard, providing that in the event of a partial or a complete termination the “rights of each affected Participant ... shall be nonforfeitable.” Flanagan and Missett argue that they are entitled to pension benefits because they were affected participants when the Plan terminated. The district court disagreed. It reasoned that the plaintiffs were no longer participants in the plan after their layoff in 1983. It rejected the argument that the rule of parity preserved their accrued benefits until the Plan terminated in 1985. The plaintiffs argued in the alternative that their rights in the Plan had vested upon a partial termination of the Plan that allegedly had occurred in 1982-83, prior to their discharge. During that year, participation in the Plan had declined significantly due to layoffs. That decline, they argued, had amounted to a partial termination under the Code. See Treas.Reg. § 1.401-6(b)(2) (1988). Without deciding whether a" } ]

[ { "docid": "9484769", "title": "", "text": "General’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In making that analysis, the district court should have focused entirely on the administrative record compiled by the Attorney General. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Instead of following this procedure, the district court held an evidentiary hearing and conducted a de novo inquiry into the circumstances surrounding appellant’s traffic accident. The court then filed findings of fact and conclusions of law and decided as a matter of law that plaintiff was not acting within the scope of his employment at the time of the accident and that the Attorney General was not required to represent him in the state court action. De novo review of administrative decisions under the Administrative Procedure Act is proper only under a limited set of circumstances. In Proietti’s case, it would be appropriate only if the “agency fact-finding procedures are inadequate”. Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 415, 91 S.Ct. 814. Since the procedures employed by the agency in this case were not inadequate, the district court should not have gone beyond the administrative record. The factual information in the report prepared for the Attorney General was gathered by soliciting a statement from Proietti and an affidavit from his supervisor. Accident reports and answers to interrogatories in the state court action were also considered. There is nothing to indicate that this method produced unreliable information. While the investigation may not have been painstakingly thorough, the same procedures, especially solicitation of affidavits, could have been used to obtain any necessary additional information. Any defects in the investigation were not the result of the agency’s “fact-finding procedures”. If the administrative record could not have sustained the Attorney General’s decision, the proper remedy would have been to remand the case for further consideration. Camp v. Pitts, supra, 411 U.S. at 143, 93 S.Ct. 1241. In the district court, appellant claimed that the lack of an administrative hearing made a de novo court hearing necessary." } ]

[ { "docid": "9484770", "title": "", "text": "at 415, 91 S.Ct. 814. Since the procedures employed by the agency in this case were not inadequate, the district court should not have gone beyond the administrative record. The factual information in the report prepared for the Attorney General was gathered by soliciting a statement from Proietti and an affidavit from his supervisor. Accident reports and answers to interrogatories in the state court action were also considered. There is nothing to indicate that this method produced unreliable information. While the investigation may not have been painstakingly thorough, the same procedures, especially solicitation of affidavits, could have been used to obtain any necessary additional information. Any defects in the investigation were not the result of the agency’s “fact-finding procedures”. If the administrative record could not have sustained the Attorney General’s decision, the proper remedy would have been to remand the case for further consideration. Camp v. Pitts, supra, 411 U.S. at 143, 93 S.Ct. 1241. In the district court, appellant claimed that the lack of an administrative hearing made a de novo court hearing necessary. The terms of 28 U.S.C. § 2679, however, do not require an administrative hearing, and, in the absence of such a requirement, neither does the Administrative Procedure Act. Camp v. Pitts, supra, 411 U.S. at 140-141, 93 S.Ct. 1241. Further proceedings in the district court might be unnecessary if we could now evaluate the administrative record under the proper standards. However, the record before us is inadequate for that task. While it contains the reports prepared by the Air Force Judge Advocate’s offices at March Air Force Base and Washington, it does not contain a copy of the decision of the Attorney General. Upon remand, the district court should conduct further proceedings to supplement the record in that regard. The Attorney General contends that the decision of the district court should be upheld even if Proietti was acting within the scope of his employment at the time of the accident. If that is the case, the Attorney General argues that the rule of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed." }, { "docid": "22371631", "title": "", "text": "must first consider whether the Secretary acted within the scope of his authority. Next, to determine whether the decision was arbitrary or capricious, the court must consider whether the decision was “based on a consideration of the relevant factors and whether there has been a clear error in judgment.” Id. Although this factual inquiry is to be “searching and careful” the ultimate standard of review is narrow. “The court is not empowered to substitute its judgment for that of the agency.” Id. at 416, 91 S.Ct. at 824. Finally, the court must inquire whether the Secretary followed the necessary procedural requirements. Because the lower courts had relied on the litigation affidavits and the administrative record was not before the Court, the Court remanded to the district court for “plenary review” of the Secretary’s decision. Id. at 420, 91 S.Ct. at 825. The district court’s review was to be based “on the full administrative record that was be fore the Secretary at the time he made his decision.” Id. at 420, 91 S.Ct. at 825. Because the bare record might not disclose the factors considered by the Secretary, the district court could require some testimony from the administrative officials who participated in the decision explaining their action. Alternatively, the Secretary could ■prepare formal findings as a means of providing adequate explanation. In Camp v. Pitts, 411 U.S. 138, 93 S.Ct., 1241, 36 L.Ed.2d 106 (1973), the Court reiterated that, where the district court reviews agency action under the arbitrary and capricious standard, it is not entitled to conduct a de novo hearing. Pitts involved review of the Comptroller of the Currency’s decision to deny a national bank charter. The district court upheld the Comptroller’s action upon a review of the administrative record, but the Court of Appeals .remanded to the district court for de novo review because the Comptroller’s ruling was not stated with sufficient clarity to allow appellate review. The Supreme Court found this procedure unwarranted. The focal point for judicial review is the administrative record already in existence, “not some new record made initially in the reviewing court.” Id." }, { "docid": "13964189", "title": "", "text": "in the reviewing court. “If .... there was such failure to explain administrative action as to frustrate effective judicial review, the remedy was not to hold a de novo hearing but, as contemplated by Overton Park [Overton Park v. Volpe, 401 U.S. 402, [91 S.Ct. 814, 28 L.Ed.2d 136]], to obtain from the agency, either through affidavits or testimony, such additional explanation or the reasons for the agency decision as may prove necessary. We add a caveat, however. Unlike Overton Park, in the present case there was contemporaneous explanation of the agency decision. The explanation may have been curt, but it surely indicated the determinative reason for the final action taken: the finding that a new bank was an uneconomic venture in light of the banking needs and the banking services already available in the surrounding community. The validity of the Comptroller’s action must, therefore, stand or fall on propriety of that finding, judged, of course by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the Comptroller’s decision must be vacated and the matter remanded for further consideration.” The Court has in its possession the much-argued-over McKay Subcommittee Report for in camera inspection. However, the Court shall not use it as a basis for its decision today for the reasons so eloquently set out in the next-preceding quote from Camp v. Pitts. The Court is basing its decision on this motion on the record before it, which record was available to the Secretary at the time he made the decision to proceed with the condemnation action, rather than to continue leasing the property in Dare County. b) THE DECISION TO PROCEED WITH THE CONDEMNATION WAS NOT ARBITRARY OR CAPRICIOUS, AND THE RECORD SHOWS UNQUESTIONABLY THE LACK OF ANY ARBITRARY OR CAPRICIOUS CONDUCT ON THE PART OF THE SECRETARY. Although the Court has ruled that the Secretary did not have to heed, as a legal requirement, the requests of the Senate and House Committees with regard to access to the peat on the Pare County property, the Court does feel that the" }, { "docid": "6903619", "title": "", "text": "a district court, the parties introduced opposing affidavits ad dressing the validity of the decision, and the affidavits served as the foundation for judicial scrutiny. The Supreme Court held that de novo consideration was not authorized, and that “[t]hese affidavits were merely ‘post hoc rationalizations’ . which have traditionally been found to be an inadequate basis for review . . [Tjhey clearly do not constitute the ‘whole record’ compiled by the agency: the basis for review required by § 706 of the [Administrative Procedure Act].” Review is rather “to be based,” the Court said, “on the full administrative record that was before the Secretary at the time he made his decision.” Two years later, the Court reinforced the doctrine that judicial review of informal agency adjudication is to be conducted solely on the administrative record. In Camp v. Pitts, the Comptroller of the Currency, proceeding under a statute which did not require a formal hearing, refused to issue a certificate authorizing the organization of a new bank. That action came under review in a district court which, on examination of the record before the Comptroller, held that de novo review was not warranted and, viewing only the administrative record, sustained the Comptroller’s ruling. On intermediate appeal, however, it was felt that the basis of the Comptroller’s decision was too obscure to enable adequate review and a remand was ordered “for a trial de novo before the District Court,” at which evidence pro and con would be introduced, and after which the court would determine “by a preponderance of evidence [whether] the Comptroller’s ruling is capricious or an abuse of discretion.” This, the Supreme Court held, was error. “The appropriate standard of review,” the Court declared, “was . whether the Comptroller’s adjudication was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ ” and “[i]n applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” In the cases at bar, however, it is asserted that without discovery and an opportunity" }, { "docid": "930765", "title": "", "text": "1975): A failure of the agency adequately to explain its actions is not a warrant to the district court to conduct a de novo evidentiary hearing, Camp v. Pitts, supra. “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” 411 U.S. at 142, 93 S.Ct. at 1244. Instead, the remedy under these circumstances is “to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” Id. at 143, 93 S.Ct. at 1244; cf. Kennecott Copper Corp. v. EPA, supra, 149 U.S.App.D.C. 231, 462 F.2d 846. Of course, these explanatory affidavits cannot constitute mere post hoc rationalizations for the action taken. Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 419, 91 S.Ct. 814; Burlington Truck Lines v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); American Petroleum Institute v. E.P.A., supra, 540 F.2d at 1029. In addition, if we are to uphold agency action, we must do so on the basis of reasons supplied by the agency itself, not provided by the Court. Bowman Transport v. Arkansas-Best Freight System, supra, 419 U.S. at 286, 95 S.Ct. 438; S.E.C. v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); Coriolan v. Immigration and Naturalization Service, 559 F.2d 993, 999 (5th Cir. 1977); Ethyl Corp. v. Environmental Protection Agency, supra, 541 F.2d at 100 n. 140. We have examined the administrative'record extant in this action. We have reviewed plaintiff’s criticisms of that record. It is our conclusion that the record is more than adequate to provide a sufficient basis for review without a de novo examination of evidence outside the administrative record. The record consists of, inter alia, (1) over 7000 comments submitted by interested persons, (2) a 16-page “Analysis” of the proposed regulations; (3) a June 6, 1977, draft economic impact statement; (4) a summary of comments received; (5) a July 15, 1977, economic impact statement; (6) an Environmental Impact Statement Assessment;" }, { "docid": "22718023", "title": "", "text": "“unwarranted by the facts.” It is quite plain from our decision in Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 (1971), that de novo review is appropriate only where there are inadequate factfinding procedures in an adjudicatory proceeding, or where judicial proceedings are brought to enforce certain administrative actions. Id., at 415. Neither situation applies here. The proceeding in the District Court was obviously not brought to enforce the Comptroller’s decision, and the only deficiency suggested in agency action or proceedings is that the Comptroller inadequately explained his decision. As Overton Park demonstrates, however, that failure, if it occurred in this case, is not a deficiency in factfinding procedures such as to warrant the de novo hearing ordered in this case. The appropriate standard for review was, accordingly, whether the Comptroller’s adjudication was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” as specified in 5 U. S. C. § 706 (2) (A). In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court. Respondents contend that the Court of Appeals did not envision a true de novo review and that, at most, all that was called for was the type of “plenary review” contemplated by Overton Park, supra, at 420. We cannot agree. The present remand instructions require the Comptroller and other parties to make an evidentiary record before the District Court “manifesting opposition, if any, to the new bank.” The respondents were also to be afforded opportunities to support their application with “any other relevant evidence.” These instructions seem to put aside the extensive administrative record already made and presented to the reviewing court. If, as the Court of Appeals held and as the Comptroller does not now contest, there was such failure to explain administrative action as to frustrate effectivé judicial review, the remedy was not to hold a de novo hearing but, as contemplated by Overton Park, to obtain from the agency, either through affidavits or testimony, such additional explanation of the" }, { "docid": "9484776", "title": "", "text": "action is still pending in the state court. . Rothman v. Hospital Service of Southern California, 510 F.2d 956 (9th Cir. 1975); State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969). . Appellant’s response was submitted through his attorney. . Consequently, the Administrative Procedure Act’s requirement of formal findings by the agency is not relevant to this case. . As part of its findings of fact and conclusions of law, the district court also concluded that the decision of the Attorney General was not arbitrary and capricious. It is impossible to determine if this conclusion was based solely upon an examination of the administrative record since it was made after the evidentiary hearing. In any event, it cannot stand because the decision of the Attorney General was not included in the record before the court. . Similarly, the argument that Nakatani has failed to timely file an administrative claim must be rejected as irrelevant to the necessary decision under 28 U.S.C. § 2679. EUGENE A. WRIGHT, Circuit Judge (dissenting): The accident giving rise to this litigation occurred on October 12, 1970. Now, more than five years later, the majority vacates and remands for further proceedings. I respectfully dissent. If the agency fact-finding procedures were inadequate, the de novo review in the district court was appropriate. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). If they were adequate, we should simply ignore the evidence presented at the de novo hearing, and review the administrative determination under the arbitrary and capricious test. [5 U.S.C. § 706(2)(A)] Whichever record is used, I am convinced as a matter of law that the Attorney General should defend Proietti in the state action pursuant to the Federal Drivers Act [28 U.S.C. § 2679]. The administrative record shows the following: Master Sergeant Proietti’s private automobile collided with that of Major Nakatani, who subsequently brought a personal injury and property damage action against Proietti in California Superior Court. The accident oc curred" }, { "docid": "11433186", "title": "", "text": "F.3d at 151; Nagi, 751 F.2d at 828. “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Even were the RAA’s determination unsupported by the record, the proper remedy would be to remand to the agency for additional investigation or explanation, because “[t]he reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). The district court properly applied the arbitrary or capricious standard of review, rejected de novo review, and remanded any issues for which the record was incompletely developed. “[D]e novo review is appropriate only where there are inadequate factfinding procedures in an adjudicatory proceeding, or where judicial proceedings are brought to enforce certain administrative actions.” Camp, 411 U.S. at 142, 93 S.Ct. 1241. Neither situation applies here. The proceeding before the district court was not brought to enforce the RAA’s determination, and the only reasonable deficiency suggested in the administrative proceedings is that the RAA inadequately supported its decision. Kroger was permitted to (1) submit enormous amounts of material, (2) meet multiple times with RAA officials, (3) amend its claim twice, and (4) supplement the record in any way it saw fit. There was no deficiency in the factfinding procedures that would warrant a de novo hearing in this matter. For the first time on appeal, Kroger presents an issue of first impression in our circuit: whether an agency’s denial of relocation benefits under the URA should also be examined for substantial evidence under 5 U.S.C.A. § 706(2)(E). Section § 706(2)(E) provides that a reviewing court shall set aside those agency determinations found to be “unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by" }, { "docid": "930764", "title": "", "text": "review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). See also Roberts v. Morton, 549 F.2d 158, 160 (10th Cir. 1977); Ballard E. Spencer Trust, Inc. v. Morton, supra, 544 F.2d at 1069; Nickol v. United States, 501 F.2d 1389, 1390 (10th Cir. 1974). Thus, unless the plaintiff affirmatively demonstrates that the administrative record upon which the defendant’s decision was made was inadequate, our review must be limited to the administrative record. The only exception is that the Court may entertain the testimony of agency officials for “explanatory” purposes, that is, to explain the decision-making process that was utilized. Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 420, 91 S.Ct. 814; Camp v. Pitts, supra, 411 U.S. at 143, 93 S.Ct. 1241; Independent Meat Packers Ass’n v. Butz, supra, 526 F.2d at 239. As noted in National Nutritional Foods Ass’n v. Weinberger, 512 F.2d 688, 701 (2d Cir. 1975): A failure of the agency adequately to explain its actions is not a warrant to the district court to conduct a de novo evidentiary hearing, Camp v. Pitts, supra. “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” 411 U.S. at 142, 93 S.Ct. at 1244. Instead, the remedy under these circumstances is “to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” Id. at 143, 93 S.Ct. at 1244; cf. Kennecott Copper Corp. v. EPA, supra, 149 U.S.App.D.C. 231, 462 F.2d 846. Of course, these explanatory affidavits cannot constitute mere post hoc rationalizations for the action taken. Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 419, 91 S.Ct. 814; Burlington Truck Lines v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); American Petroleum Institute v. E.P.A., supra, 540 F.2d at 1029. In addition, if we are" }, { "docid": "22963953", "title": "", "text": "was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” as specified in 5 U.S.C. § 706(2)(A). The scope of review under this section is narrow: “In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). As this Court recently noted in Upjohn Mfg. Co. v. Schweiker, 681 F.2d 480 (6th Cir.1982), de novo review of agency action is the exception rather than the rule, unless required by statute. “ \\D ]e novo review is appropriate only where there are inadequate factfinding procedures in an adjudicatory proceeding, or where judicial proceedings are brought to enforce certain administrative actions.’ ” Id. at 483 (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)). Thus, consideration of evidence outside the administrative record is proper under some circumstances, e.g., “for background information ... or for the limited purposes of ascertaining whether the agency considered all the relevant factors or fully explicated its course of conduct or grounds of decision.” Id. (citations omitted). Moreover, the District Court stated in its Order that it based is decision upon its “review of the administrative record, the memoranda and the arguments by counsel.” Joint Appendix at 263. The Order does not reveal that the District Court used any evidence outside the administrative record in reaching its decision. Thus, we find that the District Court did not conduct a trial de novo and that the Government’s contention that the District Court based its decision on information outside the administrative record is without merit. Norwich Eaton, 808 F.2d at 489. A court should admit affidavits that are not part of the record only for the limited purposes of providing “background information,” considering whether the agency fully explained “its course of conduct” or determining “whether the agency considered all relevant factors.” In Norwich Eaton, we affirmed the district court’s decision because it was not based on outside-the-record" }, { "docid": "22718024", "title": "", "text": "already in existence, not some new record made initially in the reviewing court. Respondents contend that the Court of Appeals did not envision a true de novo review and that, at most, all that was called for was the type of “plenary review” contemplated by Overton Park, supra, at 420. We cannot agree. The present remand instructions require the Comptroller and other parties to make an evidentiary record before the District Court “manifesting opposition, if any, to the new bank.” The respondents were also to be afforded opportunities to support their application with “any other relevant evidence.” These instructions seem to put aside the extensive administrative record already made and presented to the reviewing court. If, as the Court of Appeals held and as the Comptroller does not now contest, there was such failure to explain administrative action as to frustrate effectivé judicial review, the remedy was not to hold a de novo hearing but, as contemplated by Overton Park, to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary. We add a caveat, however. Unlike Overton Park, in the present case there was contemporaneous explanation of the agency decision. The explanation may have been curt, but it surely indicated the determinative reason for the final action taken: the finding that a new bank was an uneconomic venture in light of the banking needs and the banking services already available in the surrounding community. The validity of the Comptroller’s action must, therefore,, stand or fall on the propriety of that finding, judged, of course, by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the Comptroller’s decision must be vacated and the matter remanded to him for further consideration. See SEC v. Chenery Corp., 318 U. S. 80 (1943). It is in this context that the Court of Appeals should determine whether and to what extent, in the light of the administrative record, further explanation is necessary to a proper assessment of the agency’s decision. The petition for" }, { "docid": "22863894", "title": "", "text": "the “arbitrary, capricious” standard agency action will not be upheld where inadequacy of explanation frustrates review. Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Indeed the very absence of a detailed record of the type that would be made if an evidentiary hearing were held makes it advisable for the agency, in lieu thereof, to provide a thorough and comprehensible statement of the reasons for its decision. Where the agency’s “finding is not sustainable on the administrative record made, then the . . . decision must be vacated and the matter remanded to [the agency] for further consideration.” Camp v. Pitts, 411 U.S. at 143, 93 S.Ct. at 1244; cf. Kennecott Copper Corp. v. Environmental Protection Agency, 149 U.S.App.D.C. 231, 462 F.2d 846, 850 (1972) (remanding to the agency for explanation of the basis of its finding). A failure of the agency adequately to explain its actions is not a warrant to the district court to conduct a de novo evidentiary hearing, Camp v. Pitts, supra. “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” 411 U.S. at 142, 93 S.Ct. at 1244. Instead, the remedy under these circumstances is “to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” Id. at 143, 93 S.Ct. at 1244; cf. Kennecott Copper Corp. v. EPA, supra. Applying the foregoing principles here, a serious question is raised as to whether the Commissioner, in concluding that the higher level dosage forms of Vitamins A and D are “drugs,” acted “in accordance with law,” as that phrase is used in 5 U.S.C. § 706(2)(A). The question is posed by § 201(g) of the Act, 21 U.S.C. § 321(g), which defines a “drug” as an article recognized in the United States Pharmacopoeia or “intended for use in the diagnosis, cure, mitigation, treatment or prevention of" }, { "docid": "11433185", "title": "", "text": "evidence. Kroger is incorrect. We review the district court’s grant of summary judgment de novo, using the same standard to review the RAA’s actions as the district court. See Clark v. Portage County, Ohio, 281 F.3d 602, 603 (6th Cir.2002). Agency actions involving relocation assistance under the URA are subject to judicial review under the Administrative Procedure Act, 5 U.S.C.A. §§ 701 et seq. (West 1996 & Supp.2001). See Nagi v. United States, 751 F.2d 826, 828 (6th Cir.1985); see also M/V Cape Ann v. United States, 199 F.3d 61, 63 (1st Cir.1999); Supreme Oil Co. v. Metro. Transp. Auth., 157 F.3d 148, 151 (2d Cir.1998); Ackerley Communications of Florida, Inc. v. Henderson, 881 F.2d 990, 998 (11th Cir.1989). Thus, review of the RAA’s denial of relocation benefits is under the narrow standard set forth in the APA: we may set aside the RAA’s findings, conclusions, or actions only if they were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C.A. § 706(2)(A); see Supreme Oil Co., 157 F.3d at 151; Nagi, 751 F.2d at 828. “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Even were the RAA’s determination unsupported by the record, the proper remedy would be to remand to the agency for additional investigation or explanation, because “[t]he reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). The district court properly applied the arbitrary or capricious standard of review, rejected de novo review, and remanded any issues for which the record was incompletely developed. “[D]e novo review is appropriate only where there are inadequate factfinding procedures in an adjudicatory proceeding, or where judicial proceedings are brought to enforce certain administrative actions.” Camp, 411 U.S." }, { "docid": "22371633", "title": "", "text": "at 142, 93 S.Ct. at 1244. Instructions requiring the parties to make an evidentiary record in the district court suggests that the administrative record is to be put aside. If additional explanation is necessary, the proper course is not to hold a de novo hearing but to obtain, through affidavit or testimony, further explanation from the agency. If the finding, once explained, is not sustainable on the administrative record, then the Comptroller’s action must be vacated and remanded to him for further consideration. This court\" has applied these principles. In Proietti v. Levi, 530 F.2d 836 (9th Cir. 1976), a case involving review of the Attorney General’s decision to deny a request by Master Sergeant Proietti for legal defense in a state court tort action, the district court conducted a de novo hearing and found the final decision of the Attorney General to be arbitrary and capricious. The court vacated, holding that the district court should have “focused entirely on the administrative record compiled by the Attorney General.” Id. at 838. If the district court found that the administrative record did not sustain the action, the remedy was not to take additional evidence, but instead to remand the matter for reconsideration by the agency. This court further enlightened the role of the court conducting review of agency action in Bunker Hill Co. v. EPA, 572 F.2d 1286 (9th Cir. 1977). There, the court reviewed the EPA’s decision to reject portions of a state implementation plan under the Clean Air Act and substitute its own. Because of the highly technical nature of the subject matter, the court decided that it was not “straightjacketed” to the original record and requested the parties to provide supplementary materials to aid the court in its understanding. These new materials were merely “explanatory” of the original record and contained no new rationalizations. Id. at 1292. See also Association of Pacific Fisheries v. Environmental Protection Agency, 615 F.2d 794, 811, (9th Cir. 1980). A number of rules governing the scope of judicial review of agency action emerge from these cases. Predominant is the rule that agency action" }, { "docid": "22371632", "title": "", "text": "the bare record might not disclose the factors considered by the Secretary, the district court could require some testimony from the administrative officials who participated in the decision explaining their action. Alternatively, the Secretary could ■prepare formal findings as a means of providing adequate explanation. In Camp v. Pitts, 411 U.S. 138, 93 S.Ct., 1241, 36 L.Ed.2d 106 (1973), the Court reiterated that, where the district court reviews agency action under the arbitrary and capricious standard, it is not entitled to conduct a de novo hearing. Pitts involved review of the Comptroller of the Currency’s decision to deny a national bank charter. The district court upheld the Comptroller’s action upon a review of the administrative record, but the Court of Appeals .remanded to the district court for de novo review because the Comptroller’s ruling was not stated with sufficient clarity to allow appellate review. The Supreme Court found this procedure unwarranted. The focal point for judicial review is the administrative record already in existence, “not some new record made initially in the reviewing court.” Id. at 142, 93 S.Ct. at 1244. Instructions requiring the parties to make an evidentiary record in the district court suggests that the administrative record is to be put aside. If additional explanation is necessary, the proper course is not to hold a de novo hearing but to obtain, through affidavit or testimony, further explanation from the agency. If the finding, once explained, is not sustainable on the administrative record, then the Comptroller’s action must be vacated and remanded to him for further consideration. This court\" has applied these principles. In Proietti v. Levi, 530 F.2d 836 (9th Cir. 1976), a case involving review of the Attorney General’s decision to deny a request by Master Sergeant Proietti for legal defense in a state court tort action, the district court conducted a de novo hearing and found the final decision of the Attorney General to be arbitrary and capricious. The court vacated, holding that the district court should have “focused entirely on the administrative record compiled by the Attorney General.” Id. at 838. If the district court" }, { "docid": "8624298", "title": "", "text": "standard of review. If that finding is not sustainable on the administrative record made, then the Comptroller’s decision must be vacated and the matter remanded to him for further consideration. It is in this context that the Court of Appeals should determine whether and to what extent, in the light of the administrative record, further explanation is necessary to a proper assessment of the agency’s decision. 411 U.S. at 143, 93 S.Ct. at 1244 (citations omitted). The appellant’s assertions of misconduct and collusion are wholly refuted by the record. Lastly, the Bank of Commerce contends that the Comptroller abused his discretion in approving City National’s charter application and that this charge was inappropriate for summary disposition by the court below. When reviewing a case disposed of under Fed. R. Civ. P. 56, an appellate court must apply the same general standard as that initially employed by the trial court — whether there is any genuine issue as to any material fact and whether the movant is entitled to judgment as a matter of law. 10 C. Wright & A. Miller, Federal Practice and Procedure § 2716, at 430 (1973). Moreover, when a plaintiff who has no right to a trial de novo brings an action to review an administrative record which is before the reviewing court, “the case is ripe for summary disposition, for whether the order is supported by sufficient evidence, under the applicable statutory standard, or is otherwise legally assailable, involve matters of law.” 6 J. Moore, Federal Practice j[ 56.17[3], at 2472 (1965). The appropriate legal standard for conducting such review is that established by the legislation authorizing the agency action and the appurtenant provisions of the Administrative Procedure Act. The National Banking Act, 12 U.S.C. § 21 et seq. (1970), which authorizes the Comptroller to grant new certificates of authority to commence banking, accords him broad discretion to approve or reject new charter applications. See 12 U.S.C. §§ 26, 27 (1970). Since neither the National Banking Act nor the Administrative Procedure Act, 5 U. S.C. §§ 701-706 (1970), requires the Comptroller to conduct a hearing or" }, { "docid": "21075556", "title": "", "text": "138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), in support of its contention that the trial court’s review is limited to the administrative record and that the trial court must remand to the Office of the Trade Representative for further development of the administrative record if the current record is insufficient to facilitate judicial review. We disagree that such a remand is required under the circumstances of this case. In Camp, the Supreme Court held that it was improper for a reviewing court to conduct a trial de novo to determine whether an agency’s decision was capricious or an abuse of discretion. In such a case, where there is a “failure to explain administrative action as to frustrate effective judicial review,” the proper remedy is not to conduct a de novo hearing, but “to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” Camp, 411 U.S. at 142-43, 93 S.Ct. 1241. Similarly, in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), the Supreme Court made clear that where the administrative record does not disclose the reasons for particular administrative action, “it may be necessary for the District Court to require some explanation in order to determine if the Secretary acted within the scope of his authority and if the Secretary’s action was justifiable under the applicable standard.” In this case, our remand did not direct the trial court to conduct de novo review of the Trade Representative’s determination. Instead, the question to be resolved on remand is whether the Trade Representative actually made that determination, a straightforward inquiry that would not seem to require a further remand to the agency. Indeed, the government did not previously seem to think the “imminence” issue had to be resolved based only on evidence in the administrative record. In the portion of its original brief directed to that issue the government pointed not to the administrative record but to a publication by the Trade Representative that postdated the administrative" }, { "docid": "8624292", "title": "", "text": "charter application with only a very cursory explanation. The Supreme Court held that if “there was such failure to explain administrative action as to frustrate effective judicial review, the remedy was not to hold a [trial] de novo . . . but . to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” 411 U.S. at 142, 93 S.Ct. at 1244. The Bank of Commerce asks this court to reverse and remand with instructions that the district court elicit further commentary from the Comtproller explaining his decision and accord appellant access to the discovery process. Appellant’s reliance on these decisions, however, is misconceived. The preponderant weight of judicial precedent bars plaintiffs from deposing the Comptroller or requiring him to answer interrogatories. United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 1004-1005, 85 L.Ed. 1429 (1941); Warren Bank v. Saxon, 263 F.Supp. 34 (E.D. Mich. 1966), aff’d sub nom. Warren Bank v. Camp, 396 F.2d 52, 56 (6th Cir. 1968); Klanke v. Camp, 320 F.Supp. 1185 (S.D. Tex. 1970). The Supreme Court recently affirmed this policy in Camp v. Pitts, supra, stating that “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” 411 U.S. at 142, 93 S.Ct. at 1244. Here, the fact that it had the entire administrative file before it fully enabled the district court to conclude that the Comptroller’s decision was neither arbitrary nor capricious. When juxtaposed to such a complete administrative record and the applicable principles of law, appellant’s conclusory objections to the hearing officer’s refusal to grant a continuance, to the absence of a formal adversary hearing, and to ex parte meetings between the Comptroller’s staff and City National’s organizers, clearly fail to make out a prima facie ease of misconduct. In reliance on the literal wording of the National Banking Act, see 12 U.S.C. §§ 26, 27 (1970) , no court has held that the Comptroller must hold an adversary hearing in passing úpon" }, { "docid": "13964188", "title": "", "text": "Acres of Land, etc., 24 F.R.D. 368 (D.Cal.1959). Despite the inapplicability of the Administrative Procedure Act as a vehicle for review in this action, Federal Rule of Civil Procedure 71 does provide for judicial review under its aegis of objections and defenses of the condemnee. As First Colony is alleging arbitrary and capricious actions and bad faith, the Court will consider this objection. Furthermore, as a vehicle for its analysis on this issue, the Court hereby borrows the analysis on bad faith, etc., from a case brought under the Administrative Procedure Act, and decided by the Supreme Court. Camp v. Pitts, 411 U.S. 138, at 142, 93 S.Ct. 1241, at 1244, 36 L.Ed.2d 106 at 111 provides, in part: “The appropriate standard for review was accordingly whether the Comptroller’s adjudication was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ as specified in 5 U.S.C. § 706(2)(A). In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court. “If .... there was such failure to explain administrative action as to frustrate effective judicial review, the remedy was not to hold a de novo hearing but, as contemplated by Overton Park [Overton Park v. Volpe, 401 U.S. 402, [91 S.Ct. 814, 28 L.Ed.2d 136]], to obtain from the agency, either through affidavits or testimony, such additional explanation or the reasons for the agency decision as may prove necessary. We add a caveat, however. Unlike Overton Park, in the present case there was contemporaneous explanation of the agency decision. The explanation may have been curt, but it surely indicated the determinative reason for the final action taken: the finding that a new bank was an uneconomic venture in light of the banking needs and the banking services already available in the surrounding community. The validity of the Comptroller’s action must, therefore, stand or fall on propriety of that finding, judged, of course by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the" }, { "docid": "22297221", "title": "", "text": "judicial review based “upon the administrative record,” this court, absent exceptional circumstances, confines itself to the record created in the proceedings below. As stated in Aero Corp., S.A. v. United States, 38 Fed.Cl. 408 (1997): [T]he court’s review • generally should be based upon an examination of the “whole record” before the agency, i.e., the material that was developed and considered by the agency in making its decision____The focal point for judicial review therefore “should be the administrative record already in existence, not some new record made initially by the reviewing court.” Id. at 410-11 (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106, (1973)). See also Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (where a record in an arbitrary and capricious review is incomplete, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.”); FCC v. ITT World, Communications, Inc., 466 U.S. 463, 469, 104 S.Ct. 1936, 80 L.Ed.2d 480 (1984). This principle “exerts its maximum force when the substantive soundness of the agency’s decision is under scrutiny,” Esch v. Yeutter, 876 F.2d 976, 991 (D.C.Cir.1989), and is all the more absolute where, as here, a formal record was developed by the agency in reaching its decision. Nonetheless, limited exceptions exist under which an administrative record may be supplemented. Thus, some decisions hold that a court may consider “extra-record” evidence: (1) when agency action is not adequately explained in the record before the court; (2) when the agency failed to consider factors which are relevant to its final decision; (3) when an agency considered evidence which it failed to include in the record; (4) when a case is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) in cases where evidence arising after the agency action shows whether" } ]

[ { "docid": "13577775", "title": "", "text": "meet Code requirements for approval over creditor’s objections. We review the bankruptcy and district courts’ conclusions of law de novo. See Rubner & Kutner, P.C. v. United States Trustee (In re Lederman Enters., Inc.), 997 F.2d 1321, 1323 (10th Cir.1993). Creditor argues that the United States Supreme Court’s decision in Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), prohibits the stripping of his lien. In Dewsnup, the Court held that chapter 7 debtors could not use § 506(d) of the Code to strip down a lien on real property to the value of the underlying collateral. Noting the traditional rule that, in liquidation eases, the lien remained with the collateral until foreclosure, the Court found no clear evidence that Congress intended to change the rule. Id. at -, 112 S.Ct. at 778-79. The Court specifically limited its holding to the facts before it, stating: [Section] 506 of the Bankruptcy Code and its relationship to other provisions of that Code do embrace some ambiguities. Hypothetical applications that come to mind and those advanced at oral argument illustrate the difficulty of interpreting the statute in a single opinion that would apply to all possible fact situations. We therefore focus upon the case before us and allow other facts to await their legal resolution on another day. Id. at -, 112 S.Ct. at 777-78 (citation omitted). We must determine whether Dewsnup prohibits lien stripping in the chapter 11 context as well. As the Court implied, in reorganization cases the traditional rule has been that liens may be stripped down to the value of the collateral securing a creditor’s claim. See id. at -, 112 S.Ct. at 779 (“Apart from reorganization proceedings, ... no provision of the pre-Code statute permitted involuntary reduction of the amount of a creditor’s lien for any reason other than payment on the debt.”); In re Jones, 152 B.R. 155, 173 (Bankr.E.D.Mich.1993) (discussing § 461(11) and § 616 of previous Bankruptcy Act, which allowed debtors to strip liens to the value of the underlying property). Thus, in contrast to chapter 7, Congress enacted chapter 11" } ]

[ { "docid": "17527605", "title": "", "text": "lien secures a claim against the debtor that is not an allowed secured claim, such lien is void....” 11 U.S.C. § 506(d) (emphasis added). The issue of whether a wholly unsecured lien is subject to strip-off pursuant to § 506(d) has been unsettled in this circuit until now. In July 2013, the Seventh Circuit Court of Appeals held that § 506(d) does not provide the vehicle for lien stripping in chapter 13 cases. Ryan v. United States (In re Ryan), No. 12-3398, 2013 WL 3380131, at *5 (7th Cir. July 8, 2013). More specifically, the Court held that the interpretation of § 506(d) in Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), applies in chapter 13 cases, as well as chapter 7. Ryan, 2013 WL 3380131, at *5. In Dewsnup, the United States Supreme Court held that § 506(d) precludes the strip-down of a creditor’s lien on real property because a claim that has been bifurcated under § 506(a) is secured by a lien and has been fully allowed pursuant to § 502. Dewsnup, 502 U.S. at 417, 112 S.Ct. 773. Although Dewsnup addressed the strip-down of liens and both that decision and Ryan are silent as to whether a wholly unsecured junior lien may be stripped off pursuant to § 506(d), the reasoning in those decisions clearly applies to strip-offs and strip-downs alike. That is, § 506(d) may be used to void only those liens that are not secured and have not been allowed. See Ryan, 2012 WL 4959632, at *3-4. Therefore, as long as a wholly unsecured junior lien has been allowed, it may not be avoided under § 506(d). Here, as indicated above, the Court found that the value of the 4731 Property as of January 27, 2012 was $70,000. The amount owed on the first mortgage, $150,638.89, exceeds the value of the Property. Thus, the Creditor’s second lien is wholly unsecured for purposes of § 506(d). However, the Debtors did not object to the claim and, therefore, the claim is allowed under § 502(a). See 11 U.S.C. § 502(a) (“A claim" }, { "docid": "16761431", "title": "", "text": "is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. 11 U.S.C. § 506(a)(1). Moreover, with some exceptions not applicable here, “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void.... ” 11 U.S.C. § 506(d). Thus, in bankruptcy cases a debtor or trustee may seek to value a creditor’s collateral for the purpose of reducing that creditor’s secured claim to the value of its collateral, while the remaining allowed claim is treated as an unsecured claim. When the secured claim is partially reduced this is known as a “strip down”. When the lien is completely removed because the claim is not secured at all (usually a second or third mortgage on real estate), this is known as a “strip off’. There are limitations on a debtor’s ability to strip down or strip off a lien. First, a chapter 7 debtor may not use section 506 to strip a lien, Dewsnup v. Timm, 502 U.S. 410, 417, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) (“[T]he creditor’s lien stays with the real property until the foreclosure.”). In Dewsnup, the Supreme Court held that § 506(d) did not mean that a lien would be modified based solely upon a § 506(a) valuation. Instead, it held that § 506(d) acts to avoid liens only if the underlying claim is disallowed. The Court rejected an interpretation of § 506(d) that would depart from the well-established pre-Code rule that liens pass through bankruptcy unaffected. 502 U.S. at 417, 112 S.Ct. 773. Dewsnup was a strip down case, but this Court agrees with the majority of courts, including the only two circuit courts to address the issue, which have interpreted Dewsnup as also prohibiting strip offs in a Chapter 7 case. See, e.g., Talbert v. City Mortgage Servs. (In re Talbert), 344 F.3d 555, 562 (6th Cir.2003); Ryan v. Homecomings Fin. Network, 253 F.3d 778, 783 (4th Cir.2001); In re Laskin, 222 B.R. 872, 876 (9th Cir.BAP1998); In re" }, { "docid": "2282131", "title": "", "text": "alter “the pre-Code rule that liens pass through bankruptcy unaffected.” Dewsnup, 502 U.S. at 417, 112 S.Ct. at 778. Dewsnup held that, because the creditor had an allowed secured claim pursuant to § 502 of the Code, the creditor’s claim did not come within the scope of § 506(d) and the hen could not be avoided. Id. Dewsn-up ended the practice of stripping un-dersecured consensual liens in Chapter 7 cases using § 506 of the Code. Notwithstanding Dewsnup, lien stripping remains available to some degree in Chapter 13 cases due to § 1322(b)(2), which provides in relevant part: (b) Subject to subsections (a) and (c) of this section, the plan may— (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims[.] 11 U.S.C. § 1322(b)(2). Because Chapter 13 expressly allows the modification of the rights of creditors, lien rights may be altered by the terms of a confirmed Chapter 13 plan. However, the Supreme Court has held that the lien rights of an undersecured creditor with a claim secured only by a lien on the debt- or’s principal residence may not be modified. See Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). Relying on Dewsnup and the interpretation of § 506 contained therein, the Court found that the right to “retain the lien until the debt was paid off’ was one of the creditor’s rights which could not be modified pursuant to § 1322(b)(2) when the creditor’s collateral consisted only of the debtor’s residence. Nobelman, 508 U.S. at 329, 113 S.Ct. at 2110. Although Nobelman seemed to sound the death knell for lien stripping on debtors’ residences in Chapter 13 cases, a further line of cases subsequently developed dealing with the limited circumstance of the creditor’s lien being fully unsecured due to a total lack of any equity in the residential collateral to support the lien. Many" }, { "docid": "23183039", "title": "", "text": "claim determined after application of § 506(a)? In 1993, the Supreme Court first examined the interplay between §§ 506(a) and 1322(b)(2) in Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). The limited issue before the Court in Nobelman was whether a Chapter 13 debtor could bifurcate an undersecured residential mortgage claim into its secured and unsecured components pursuant to § 506(a), leaving only the secured portion protected by the § 1322(b)(2) antimodification clause. The facts in Nobelman involved a residence valued at $23,500.00 and a first mortgage claim for $71,335.00. The debtors proposed in their Chapter 13 plan to bifurcate the mortgagee’s claim under § 506(a) into a secured claim of $23,500.00 and an unsecured claim of $47,835.00. They offered to pay the secured portion in full, but to pay nothing on the unsecured portion. The debtors argued that § 1322(b)(2) should be construed to apply the restrictive clause “other than a claim secured only by a security interest in ... the debtor’s principal residence” only to the allowed secured claim, after application of § 506(a), rather than to the entire lien claim. The Nobelman Court rejected this argument. The Court adopted what was then the minority view that § 1322(b)(2) should be construed to prohibit a Chapter 13 debtor from stripping down an underse-cured claim secured only by the debtor’s principal residence. The Supreme Court held that the creditor’s rights, enforceable under state law and “bargained for by the mortgagor and the mortgagee,” were those which Congress chose to protect in § 1322(b)(2). Id. at 329-330, 113 S.Ct. 2106 (citing to Dewsnup v. Timm, 502 U.S. 410, 417, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992)). Nobelman did not end the controversial relationship between § 506(a) and § 1322(b)(2). Does Nobelman preclude a Chapter 13 debtor from stripping off a mortgage on a principal residence where there is no collateral value whatsoever for that mortgage? That question has again led to a split in the bankruptcy and district courts. At this time, they appear almost evenly divided, McCarron v. FirstPlus Fin. (In re" }, { "docid": "15278259", "title": "", "text": "secured lien when the creditor’s claim is secured by a lien and has been fully allowed pursuant to § 502. Id. at 417, 112 S.Ct. 773. Instead, § 506(d) serves the function of voiding a lien when the claim it secures has not been allowed. Id. at 415-16, 112 S.Ct. 773. There are two reported Chapter 7 cases in which the lien sought to be avoided was totally, as opposed to partially, unsecured; both reached the result Laskin urges. Oddly, he did not cite In re Howard, 184 B.R. 644 (Bankr.E.D.N.Y.1995); the second, In re Yi 219 B.R. 394 (E.D.Va.1998) was decided after his brief was submitted. In neither Howard nor Yi does the court indicate whether there was any prior claim allowance proceeding. Both conclude that, since there was no equity to which the lien in question could attach and there could be no secured claim under § 506(a), the lien could therefore be avoided under § 506(d). With all respect to those courts, we think that analysis reverses the statutory process. Dewsnup teaches that, unless and until there is a claims allowance process, there is no predicate for voiding a lien under § 506(d). Absent either a disposition of the putative collateral or valuation of the secured claim for plan confirmation in Chapter 11,12 or 13, there is simply no basis on which to avoid a lien under § 506(d). Further, whether the lien is wholly unsecured or merely undersecured, the reasons articulated by the Supreme Court for its holding in Dewsnup, 502 U.S. at 417, 112 S.Ct. 773 — that liens pass through bankruptcy unaffected, that mortgagee and mortgagor bargained for a consensual lien which would stay with real property until foreclosure, and that any increase in value of the real property should accrue to the benefit of the creditor, not the debtor or other unsecured creditors — are equally pertinent. Neither Laskin nor the courts in Yi and Howard propound any rationale for distinguishing. Our holding that strip off is prohibited in Chapter 7 cases absent a disposition of collateral is consistent not only with Dewsnup," }, { "docid": "14637098", "title": "", "text": "(all finding that notwithstanding the Supreme Court’s decision in Dewsnup, a Chapter 7 debtor may “strip off’ an allowed secured claim if there is no value in the collateral to cover any part of the subject lien). The Fourth Circuit is the only federal appellate court to discuss this debate, and it has sided with those courts that hold that § 506 does not permit the “stripping off’ of liens in Chapter 7 proceedings. See Ryan, 253 F.3d at 783 (“[W]e hold that an allowed unsecured consensual lien may not be stripped off in a Chapter 7 proceeding pursuant to the provisions of 11 U.S.C. §§ 506(a) and (d).”). We agree with the Fourth Circuit. As did the debtors in Ryan, the Talberts argue that the secured status of a claim is determined by the security-reducing provision of § 506(a), and that pursuant to this provision, their junior lien is completely unsecured, and, thus, according to § 506(d), may be “stripped off.” See Ryan, 253 F.3d at 781. A similar argument was rejected by the Supreme Court in the analogous context of a debtor’s attempt to “strip down” an under-collateral-ized creditor’s lien in a Chapter 7 case. In Dewsnup, the debtors owned farmland encumbered by deed of trust securing a debt of $120,000. The farmland was valued at approximately $39,000. This arrangement left an unsecured deficiency of approximately $81,000, which the debtors sought to avoid pursuant to § 506(d). The lower courts would not grant this relief, and the Supreme Court affirmed. In its analysis, the Court laid out in detail the different readings that could be given to the thorny statutory interpretation question presented by the perceived interplay of §§ 506(a) and 506(d). See Dewsnup, 502 U.S. at 414-16, 112 S.Ct. 773. One interpretation, which was urged by the debtors, was that “§§ 506(a) and 506(d) are complementary and to be read together.” Id. at 414, 112 S.Ct. 773. According to this argument, “[bjecause, under § 506(a), a claim is secured only to the extent of the judicially determined value of the real property on which the lien is" }, { "docid": "3897357", "title": "", "text": "cram down under 11 U.S.C. § 1129(b)(2)(A). If the creditor elects secured status to the full extent of his or her allowed claim, the debtor must make payment totaling at least the amount of the secured claim and having a present value of at least the value of the collateral. See, M. Howard, Stripping Down Liens: Section 506(d) and the Theory of Bankruptcy, Am.Bankr.L.J. 373, 398, n. 108 (1991), citing, C. Fortgang and D. Mayer, Valuation in Bankruptcy, 32 U.C.L.A.L.Rev. 1061, 1115 (1985). . The effect of § 506 bifurcation on the secured creditor has been a topic of debate in recent cases. The Supreme Court held in Dewsnup v. Timm, — U.S. —, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), that Chapter 7 debtors may not strip down liens against property of the estate because “liens pass through bankruptcy unaffected.” See Johnson v. Home State Bank, 501 U.S. —, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). Lien stripping in Chapter 13 is also not permitted. Nobelman v. American Sav. Bank, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) (holding that § 1322(b)(2) prohibits a Chapter 13 debtor from relying on § 506(a) to reduce an undersecured homestead mortgage to the fair market value of the mortgaged residence). Chapter 13 does not, however, contain a section that parallels § 1111(b). Given the Supreme Court’s recent Nobelman decision in the context of Chapter 13 and the unique statutory goals favoring reorganization in Chapter 11, it is unclear whether the Supreme Court will apply its holding in Dewsnup to Chapter 11 cases. See Dewsnup, 112 S.Ct. at 778 (\"hypothetical applications that come to mind and those advanced at oral argument illustrate the difficulty of interpreting the statute in a single opinion that would apply to all possible fact situations. We therefore focus upon the case and allow other facts to await their legal resolution on another day”). The Supreme Court limited its holding to the facts and circumstances of the Dewsnup case, and lower courts generally state that Dewsnup does not apply to Chapter 11 cases. In re Jones, 152 B.R. 155, 173-74" }, { "docid": "1312885", "title": "", "text": "value of the collateral. Subsection (d) of § 506 renders a lien void if the claim is disallowed under § 502, for reasons other than the value of the collateral. Hence, Dewsnup, 502 U.S. at 419-20, 112 S.Ct. 773, held that whether a lien can be avoided under § 506(d) turns on whether its underlying claim has been disallowed, not on the value of the collateral. See also In re Fenn, 428 B.R. 494, 498 (Bankr.N.D.Ill.2010). To resolve the statutory ambiguity inherent in § 506, the Supreme Court declined to permit “the security-reducing provision of (a)” to alter the plain language of the “lien-voiding provision of § 506(d).” It therefore held that § 506(d) must be limited in use to where the underlying claim is invalid under § 502, because that subsection cannot be used to allow lien strips under § 506(a). Dewsnup, 502 U.S. at 413, 112 S.Ct. 773. Dewsnup found this limited use for § 506(d) was consistent with pre-Code practice that did not permit lien strips except, in reorganization cases. Id. at 419-20, 112 S.Ct. 773. The Ninth Circuit in In re Enewally v. Washington Mutual Bank, 368 F.3d 1165, 1169-70 (9th Cir.2004), recognized this distinction, and held § 506(d) did not permit lien strips in Chapter 7 cases: The rationales advanced in the Dewsnup opinion for prohibiting lien stripping in Chapter 7 bankruptcies, however, have little relevance in the context of rehabilitative bankruptcy proceedings under Chapters 11, 12, and 13, where lien stripping is expressly and broadly permitted, subject only to very minor quali fications. The legislative history of the Code makes clear that lien stripping is permitted in the reorganization chapters. (Citations omitted.) Since § 506(d) does not permit lien strips in Chapter 7 cases, the Bankruptcy Code operates to prevent it from being the statutory basis for lien strips in reorganization cases as well. Under a bankruptcy specific rule of statutory construction, § 103(a), § 506(d) must apply in all bankruptcy cases if it is to apply in any. Section 103(a) specifies that the provisions of Chapter 5 of the Code, such as §" }, { "docid": "13459698", "title": "", "text": "in Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), permits the stripping off of wholly unsecured liens. We disagree. Nobelman represented a debtor’s effort under Chapter 13 (Bankruptcy Code, 11 U.S.C. §§ 506(a) and 1322(b)(2)) to bifurcate an undersecured homestead claim into a secured claim and an unsecured claim, thereby reducing the amount of the mortgage to the judicially determined fair market value of the property. A unanimous court denied the relief sought. The decision in no way affects the Court’s ruling in Dewsnup, a Chapter 7 proceeding interpreting the relationship between 11 U.S.C. §§ 506(a) and 506(d). Nobelman’s only reference to Dewsnup is to affirm its language as to rights that were “bargained for by the mortgagor and the mortgagee.” Nobelman, 508 U.S. at 329-30, 113 S.Ct. 2106 (citing Dewsnup, 502 U.S. at 417, 112 S.Ct. 773). Indeed, the Nobelman Court made no reference to (much less discussed) § 506(d), the code provision at issue here and in Dewsnup. We find no basis for divining language in Nobelman that contradicts or modifies in any respect the clear holding of Dewsnup. We are aware, as Appellants argue, that some courts are not in agreement with this analysis of Dewsnup. See Yi v. Citibank, 219 B.R. 394, 397 (E.D.Va.1998) (Chapter 7 debtor’s proceeding — “Because Citibank’s lien is wholly unsecured, by definition it cannot be an ‘allowed secured claim.’ From this it inexorably follows that the lien is void.” (citing Howard, 184 B.R. at 644)); In re Smith, 247 B.R. 191 (W.D.Va. 2000); Farha v. First American Title Ins., 246 B.R. 547, 549 (Bankr.E.D.Mich.2000) (where claim is unsecured rather than un-dersecured “there is no allowed secured claim under § 506(a))”; Zempel v. Household Finance Corp., 244 B.R. 625 (Bankr.W.D.Ky.1999) (same). Other courts have concluded, as do we, that a Chapter 7 debtor may not use § 506(d) to strip off an allowed, wholly unsecured consensual junior lien from real property. In Laskin v. First Nat’l Bank of Keystone, 222 B.R. 872 (9th Cir. BAP (Cal.) 1998), Chapter 7 debtors sought to use § 506(d)" }, { "docid": "19976014", "title": "", "text": "case. . Nobelman prohibited the bifurcation of a single undersecured homestead lien into secured and unsecured components, whereby the unsecured component would be \"stripped down,” essentially reducing the amount of the lien to the fair market value of the collateral. When a creditor's lien is at least partially secured, § 506(a) does not operate to eliminate the creditor’s rights in the unsecured claim component. Nobelman, 508 U.S. at 328-29, 113 S.Ct. 2106. However, Nobelman does not prohibit the “stripping off” of completely unsecured junior homestead liens such as that held by Appellant. See Johnson, 226 B.R. at 369. . Appellant attempts to rely on Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) and Ryan v. Homecomings Financial Network, 253 F.3d 778 (4th Cir.2001) (relying upon Dewsnup) in support of the opposite outcome. However, Ryan and Dewsnup involved Chapter 7 bankruptcies, and are therefore inapplicable to the situation presently before the Court. \"The rationales advanced in the Dewsnup opinion for prohibiting lien stripping in Chapter 7 bankruptcies ... have little relevance in the context of rehabilitative bankruptcy proceedings under Chapters 11, 12, and 13, where lien stripping is expressly and broadly permitted, subject only to very minor qualifications. The legislative history of the Code makes clear that lien stripping is permitted in the reorganization chapters.” Bartee, 212 F.3d at 291 n. 21." }, { "docid": "23183040", "title": "", "text": "allowed secured claim, after application of § 506(a), rather than to the entire lien claim. The Nobelman Court rejected this argument. The Court adopted what was then the minority view that § 1322(b)(2) should be construed to prohibit a Chapter 13 debtor from stripping down an underse-cured claim secured only by the debtor’s principal residence. The Supreme Court held that the creditor’s rights, enforceable under state law and “bargained for by the mortgagor and the mortgagee,” were those which Congress chose to protect in § 1322(b)(2). Id. at 329-330, 113 S.Ct. 2106 (citing to Dewsnup v. Timm, 502 U.S. 410, 417, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992)). Nobelman did not end the controversial relationship between § 506(a) and § 1322(b)(2). Does Nobelman preclude a Chapter 13 debtor from stripping off a mortgage on a principal residence where there is no collateral value whatsoever for that mortgage? That question has again led to a split in the bankruptcy and district courts. At this time, they appear almost evenly divided, McCarron v. FirstPlus Fin. (In re McCarron), 242 B.R. 479, 482 (Bankr.W.D.Mo.2000), with a slight majority willing to distinguish Nobelman and hold that the antimodification clause in § 1322(b)(2) does not apply to mortgagees with totally unsecured claims. The majority decisions note that the Nobelman Court first looked to § 506(a) to determine whether any part of the creditor’s claim was secured. They remind us that the Supreme Court rejected the creditor’s argument that § 506(a) was irrelevant, and that the Court took special note of the fact that the creditor was “still the ‘holder’ of a ‘secured claim,’ because [debtors’] home retained] $ 23,500 of value as collateral.” Nobelman, 508 U.S. at 329, 113 S.Ct. 2106 (emphasis supplied). Therefore, the majority draws a distinction — believed drawn by Nobelman itself — between mortgages which are un-dersecured and those wholly unsecured. They maintain that the former were intended to be protected by the antimodifi-cation provisions of § 1322(b)(2), while the latter were not. See, e.g., Western Interstate Bancorp v. Edwards (In re Edwards), 245 B.R. 917, 921 (Bankr.S.D.Ga.2000) (wholly unsecured liens" }, { "docid": "5376496", "title": "", "text": "Lien stripping is a doctrine that may be used to void a lien that is not fully supported by value in the collateral or not supported by any value in the collateral. “Strip off’ is not mentioned, let alone defined in the Bankruptcy Code, but the term is commonly used when a debt is partially secured and partially unsecured to cancel a wholly unsecured lien in its entirety. The Supreme Court has twice addressed the issue of stripping mortgage liens on a bankruptcy debtor’s residential property. See Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) and In re Nobelman, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). Both of these cases addressed whether an undersecured senior mortgage may be “stripped down” by reducing the secured value of liens where there was some but not adequate collateral underlying the lien. Dewsnup, as described earlier, dealt with a Chapter 7 case and relied on interpretation of the phrase “allowed secured claim” in § 506(d). On the other hand, Nobelman dealt with a Chapter 13 case and, thus, interpreted a Chapter 13 specific statute— § 1332(b)(2). Nobelman defined “allowed secured claim” in light of § 506(a), which the Dewsnup Court did not do. Section 1322(b)(2) provides: Subject to subsections (a) and (c) of this section, the plan may— (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims.... This provision, in conjunction with § 506 authorizes a Chapter 13 debtor through a confirmed plan to “strip off’ wholly unsecured junior liens, as the Briscos seek to accomplish through their Adversary Complaints. This is permitted despite the provision’s prohibition against modification of claims “secured only by a security interest in real property that is the debtor’s principal residence.” That clause, is referred to as the “antimodification clause.” Although the Seventh Circuit has not considered the issue, most Circuit Courts of Appeal," }, { "docid": "20381216", "title": "", "text": "(providing that a creditor holding security shall continue to be secured by that security unless the claims have been paid in full as of the date of conversion, notwithstanding any valuation). Finally, the Trustee contends that, under section 524, a discharge operates as an injunction against any action to enforce a debt. Absent this injunction, which is precluded in the Chapter 20 context by section 1328(f), the Trustee says there is no mechanism to enforce the stripping off of a lien. The Trustee also urges that Supreme Court precedent reinforces his statutory-argument. Specifically, the Trustee directs our attention to Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), where, says the Trustee, petitioners were not allowed, in a Chapter 7 case, to strip down junior liens on claims that had been fully allowed pursuant to section 502, despite the fact that there was no equity in the collateral. In Dewsnup, the Court considered whether section 506(d) (providing that “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void”) permits a Chapter 7 debtor to strip down a creditor’s lien to the value of the collateral. See 502 U.S. at 411-12, 112 S.Ct. 773. The Court held that “ § 506(d) does not allow petitioner to ‘strip down’ [a creditor’s] lien, because [the creditor’s] claim is secured by a lien and has been fully allowed.” Id. at 417, 112 S.Ct. 773. The Court noted that section 506 “and its relationship to other provisions of [the Bankruptcy] Code do embrace some ambiguities.” Id. at 416, 112 S.Ct. 773. Given that ambiguity, the Court declined to give “allowed secured claim” the same meaning in section 506(d) as in section 506(a) and concluded that section 506 by itself is insufficient to effectuate lien-stripping. The Trustee contends that the debtors are attempting an end run around Dewsn-up ’s prohibition of Chapter 7 lien-stripping and that construing sections 1325(a)(5) and 1328(f) to bar lien-stripping by Chapter 20 debtors is consistent with BAPCPA’s goal of rebalancing the scales in favor" }, { "docid": "5376495", "title": "", "text": "to F.R.B.P. 3021, it must first be allowed pursuant to 502(a).” Alderman, 150 B.R. at 251; In re Schaffer, 173 B.R. 393, 395 (Bankr.N.D.Ill.1994); Fed. R. Bankr.P. 3021. The SBA does not have an allowed claim so it may not receive any distribution under the Briscos’ plan. Failure to State a Claim Under 11 U.S.C. § 1322(b)(2) The Briscos need not rely on § 506 to modify the SBA’s lien. Other provisions of the Code authorize a plan proponent to modify the rights of the lienholder. In this case, § 1322(b)(2) is argued to provide the relief the Briscos seek. Chapter 13 debtors may modify the rights of creditors holding secured claims through a plan of reorganization, subject to the requirements of 11 U.S.C. § 1325(a). However, 11 U.S.C. § 1322(b)(2) prohibits modification of the rights of a holder of a claim secured only by a security interest in the debtor’s principal residence. Nevertheless, as discussed below, it is well established that wholly unsecured junior liens can be “stripped off’ in a Chapter 13 case. Lien stripping is a doctrine that may be used to void a lien that is not fully supported by value in the collateral or not supported by any value in the collateral. “Strip off’ is not mentioned, let alone defined in the Bankruptcy Code, but the term is commonly used when a debt is partially secured and partially unsecured to cancel a wholly unsecured lien in its entirety. The Supreme Court has twice addressed the issue of stripping mortgage liens on a bankruptcy debtor’s residential property. See Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) and In re Nobelman, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). Both of these cases addressed whether an undersecured senior mortgage may be “stripped down” by reducing the secured value of liens where there was some but not adequate collateral underlying the lien. Dewsnup, as described earlier, dealt with a Chapter 7 case and relied on interpretation of the phrase “allowed secured claim” in § 506(d). On the other hand, Nobelman dealt" }, { "docid": "19976013", "title": "", "text": "205 F.3d at 613; see also Bartee, 212 F.3d at 293 (explaining that because secondary lending is “targeted primarily at personal spending, allowing wholly undersecured second mortgages under the umbrella of the anti-modification clause would be unlikely to positively impact home building and buying” and would “upset the delicate balance that Congress established between rights of purchase-money lenders and over-extended debtors”). This Court agrees with the other courts to have considered the issue, and rejects Appellant’s contention that permitting its lien to be stripped off pursuant to a Chapter 13 plan would create an “absurd result.” IV. CONCLUSION For the foregoing reasons, the Court will affirm the bankruptcy court’s Order granting Appellee’s Motion to Avoid First Mariner Bank’s Lien. A separate Order follows. ORDER In accordance with the foregoing memorandum opinion, it is this 2nd day of September by the United States District Court for the District of Maryland, ORDERED, that the Order of the Bankruptcy Court is AFFIRMED; and it is further ORDERED, that the Clerk of the Court is directed to close this case. . Nobelman prohibited the bifurcation of a single undersecured homestead lien into secured and unsecured components, whereby the unsecured component would be \"stripped down,” essentially reducing the amount of the lien to the fair market value of the collateral. When a creditor's lien is at least partially secured, § 506(a) does not operate to eliminate the creditor’s rights in the unsecured claim component. Nobelman, 508 U.S. at 328-29, 113 S.Ct. 2106. However, Nobelman does not prohibit the “stripping off” of completely unsecured junior homestead liens such as that held by Appellant. See Johnson, 226 B.R. at 369. . Appellant attempts to rely on Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) and Ryan v. Homecomings Financial Network, 253 F.3d 778 (4th Cir.2001) (relying upon Dewsnup) in support of the opposite outcome. However, Ryan and Dewsnup involved Chapter 7 bankruptcies, and are therefore inapplicable to the situation presently before the Court. \"The rationales advanced in the Dewsnup opinion for prohibiting lien stripping in Chapter 7 bankruptcies ... have little relevance" }, { "docid": "13459697", "title": "", "text": "only one mode of enforcing a claim- — namely, an action against the debtor in personam — while leaving intact another — namely, an action against the debtor in rem ”). Dewsnup, 502 U.S. at 417-18, 112 S.Ct. 773 (internal footnote omitted). [T]o attribute to Congress the intention to grant a debtor the broad new remedy against allowed claims to the extent that they become “unsecured” for purposes of § 506(a) without the new remedy’s being mentioned somewhere in the Code itself or in the annals of Congress is not plausible, in our view, and is contrary to basic bankruptcy principles. Id., at 420, 112 S.Ct. 773. Following the Supreme Court’s teachings in Dewsnup, as we must, we discern no principled distinction to be made between the case sub judice and that decided in Dewsnup. The Court’s reasoning in Dewsnup is equally relevant and convincing in a case like ours where a debtor attempts to strip off, rather than merely strip down, an approved but unsecured lien. Appellants next contend that the Supreme Court’s decision in Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), permits the stripping off of wholly unsecured liens. We disagree. Nobelman represented a debtor’s effort under Chapter 13 (Bankruptcy Code, 11 U.S.C. §§ 506(a) and 1322(b)(2)) to bifurcate an undersecured homestead claim into a secured claim and an unsecured claim, thereby reducing the amount of the mortgage to the judicially determined fair market value of the property. A unanimous court denied the relief sought. The decision in no way affects the Court’s ruling in Dewsnup, a Chapter 7 proceeding interpreting the relationship between 11 U.S.C. §§ 506(a) and 506(d). Nobelman’s only reference to Dewsnup is to affirm its language as to rights that were “bargained for by the mortgagor and the mortgagee.” Nobelman, 508 U.S. at 329-30, 113 S.Ct. 2106 (citing Dewsnup, 502 U.S. at 417, 112 S.Ct. 773). Indeed, the Nobelman Court made no reference to (much less discussed) § 506(d), the code provision at issue here and in Dewsnup. We find no basis for divining language in" }, { "docid": "15278260", "title": "", "text": "that, unless and until there is a claims allowance process, there is no predicate for voiding a lien under § 506(d). Absent either a disposition of the putative collateral or valuation of the secured claim for plan confirmation in Chapter 11,12 or 13, there is simply no basis on which to avoid a lien under § 506(d). Further, whether the lien is wholly unsecured or merely undersecured, the reasons articulated by the Supreme Court for its holding in Dewsnup, 502 U.S. at 417, 112 S.Ct. 773 — that liens pass through bankruptcy unaffected, that mortgagee and mortgagor bargained for a consensual lien which would stay with real property until foreclosure, and that any increase in value of the real property should accrue to the benefit of the creditor, not the debtor or other unsecured creditors — are equally pertinent. Neither Laskin nor the courts in Yi and Howard propound any rationale for distinguishing. Our holding that strip off is prohibited in Chapter 7 cases absent a disposition of collateral is consistent not only with Dewsnup, but also with the Ninth Circuit’s homestead cases, e.g., Alsberg v. Robertson (In re Alsberg), 68 F.3d 312, 315 (9th Cir.1995), holding a Chapter 7 debtor’s share of proceeds from a trustee’s sale is limited to the amount of the homestead exemption, and does not include any postpetition appreciation in the value of his residence. If the value of the Laskins’ property should increase to a level at which the junior lien is no longer unsecured, Keystone should have the benefit of that increase in value, as bargained for by the parties. V. CONCLUSION Section 506 was intended to facilitate valuation and disposition of property in the reorganization chapters of the Code, not to confer an additional avoiding power on a Chapter 7 debtor. Lange, 120 B.R. at 135. In contrast to Chapter 13 debtors, who may use § 506 to determine the amount to be paid to a creditor as a secured claim in return for at least a chance of being paid as an unsecured creditor, Laskin seeks to use § 506(d) to" }, { "docid": "3694432", "title": "", "text": "used when, there being insufficient collateral value for a mortgage, the lien is proposed to be reduced to the value of the collateral.” In re Mann, 249 B.R. 831, 832 n. 1 (1st Cir. BAP 2000). Section 506(d) provides that “[t]o the extent that a lien secures a claim against a debtor that is not an allowed secured claim, such a lien is void.” In Dewsnup v. Timm, 502 U.S. 410, 417, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), the Supreme Court held that Section 506(d) only avoids a lien to the extent that the underlying claim was disallowed pursuant to Section 502 (Allowance of claims or interests). Therefore, lien stripping is not allowed in chapter 7. In light of Dewsnup, Section 506(d) is not the proper authority for lien stripping in chapter 13. Hill, 440 B.R. at 181 (citing 4 Collier on Bankruptcy ¶ 506.06[l][c]); Fenn, 428 B.R. at 500; Gerardin, 447 B.R. at 346-47. Even so, lien stripping is “expressly and broadly permitted” in the context of rehabilitative bankruptcy proceedings under chapters 11, 12 and 13. In re Bartee, 212 F.3d 277, 291 n. 21 (5th Cir.2000). In chapter 13, the debtor’s plan may “modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims ...” § 1322(b)(2) (emphasis added). The Supreme Court interpreted § 1322(b)(2) to prohibit a homestead mortgage lien from being stripped down to the value of the collateral, reading the language “a claim secured only by a security interest in real property” as “referring to the lienholder’s entire claim, including both the secured and the unsecured components of the claim.” Nobelman v. Am. Savings Bank, 508 U.S. 324, 331, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). But this does not deal with the situation, presented by the case at bar, where the lien is completely unsecured—i.e., “a junior lien on a residence if the amount of a senior lien on" }, { "docid": "5742840", "title": "", "text": "void. Put in more colloquial terms, petitioner in Dewsnup argued that §§ 506(a) and 506(d) permitted, indeed compelled, “stripping down” a lien, which occurs when “a partially secured lien is bifurcated and only the unsecured portion is [avoided].” Lam v. Investors Thrift (In re Lam), 211 B.R. 36, 37 n. 2 (9th Cir. BAP 1997). The Supreme Court rejected this argument, holding instead that the two Code sections need not be read as “rigidly tied” to each other, as petitioner had argued. See 502 U.S. at 415, 417, 112 S.Ct. at 777, 778. “Rather, the words [in § 506(d) ] should be read term-by-term to refer to any claim that is, first, allowed, and, second, secured.” Dewsnup, 502 U.S. at 415, 112 S.Ct. at 777. Given this, the Supreme Court held that petitioner could not avoid the unsecured portion of the hen because the lien was (i) allowed under § 502 and (ii) secured by the collateral. Nor did it matter, according to the Supreme Court, that the value of the collateral was less than the value of the lien. In the Supreme Court’s view, the existence of some collateral sufficed to render the lien a secured claim. In more colloquial terms, then, Dewsnup held that § 506(d) does not permit a Chapter 7 debtor to strip down a creditor’s hen to the judicially determined value of the underlying collateral. Given this holding, it is not difficult to discern why the bankruptcy court concluded that Dewsnup compelled dismissal of this case:- Dewsnup forbids stripping down, which is only different in degree from “stripping off,” the issue in this case. The question, then, is whether stripping off and stripping down are not only different in degree, but also different in kind, such that Dewsnup should not apply to the instant facts. IV A. The Lien is Unsecured Under § 506(a) Although Dewsnup is the Supreme Court decision most analogous to this appeal, it is not dispositive; the facts of Dewsnup are significantly distinguishable from the facts of the case at bar such that the bankruptcy court’s reliance on Dewsnup is ultimately" }, { "docid": "3694431", "title": "", "text": "adversary proceeding, did not file a claim with respect to the second mortgage, and is not a party to this appeal. Section 506(a) of the bankruptcy code deals with the situation, described above, when the lien amount exceeds the current value of the property: An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. 11 U.S.C. § 506(a). This section separates an undersecured creditor’s claim into two parts: a secured claim to the extent of the value of the collateral, and an unsecured claim for the balance of the claim. “The term ‘strip off is colloquially used when, there being no collateral for a mortgage, the entire lien is proposed to be avoided. The term ‘strip down’ is used when, there being insufficient collateral value for a mortgage, the lien is proposed to be reduced to the value of the collateral.” In re Mann, 249 B.R. 831, 832 n. 1 (1st Cir. BAP 2000). Section 506(d) provides that “[t]o the extent that a lien secures a claim against a debtor that is not an allowed secured claim, such a lien is void.” In Dewsnup v. Timm, 502 U.S. 410, 417, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), the Supreme Court held that Section 506(d) only avoids a lien to the extent that the underlying claim was disallowed pursuant to Section 502 (Allowance of claims or interests). Therefore, lien stripping is not allowed in chapter 7. In light of Dewsnup, Section 506(d) is not the proper authority for lien stripping in chapter 13. Hill, 440 B.R. at 181 (citing 4 Collier on Bankruptcy ¶ 506.06[l][c]); Fenn, 428 B.R. at 500; Gerardin, 447 B.R. at 346-47. Even so, lien stripping is “expressly and broadly permitted” in the context of rehabilitative bankruptcy proceedings under chapters 11," } ]

[ { "docid": "22796888", "title": "", "text": "September 29, 1995, the jury returned guilty verdicts on all counts for the remaining nine RICO defendants, with the exception of Millet, who was acquitted on one VICAR count of assault with a dangerous weapon and on one predicate act of racketeering of the RICO count for conspiracy to murder. Following the trial and conviction of the RICO defendants, the court scheduled trials for the twenty-one non-RICO defendants, including defendants-appellants E. Rodriguez, Calderon and G. Rivera. On March 5, 1996, Calderon pleaded guilty to the second superseding indictment charging him with participating in the drug conspiracy and a one count information charging him with receiving a firearm while under indictment for a felony offense. Subsequently in 1996, E. Rodriguez and G. Rivera were both found guilty in separate trials of participating in the drug conspiracy- Defendants-appellants were sentenced as indicated above and these appeals followed. DISCUSSION Defendants-appellants jointly or individually make numerous arguments on appeal, including challenges to: (1) the government’s peremptory strikes during jury selection; (2) juror conduct; (3) the jury selection system; (4) admission of prior uncharged crimes and “bad acts” into evidence; (5) preclusion of testimonial and demonstrative evidence, including a murder victim’s prison records; (6) admission of co-conspirator statements; (7) sufficiency of the evidence; (8) jury instructions; (9) denial of severance motions; (10) denial of motion for a new trial; (11) denial of motion to suppress wiretap evidence; (12) denial of motion for Judge Nevas to recuse himself; (13) effectiveness of trial counsel; (14) voluntariness of a guilty plea; (15) denial of defense witness immunity; and (16) the district court’s sentencing calculations. For the reasons that follow, we conclude that none of the defendants-appellants’ challenges merit relief. I. Contentions with Respect to the Jury A. Batson Challenge Zapata argues he is entitled to a new trial because the government exercised three of its twelve peremptory strikes in a racially discriminatory manner. Specifically, he alleges that the district court erred in (1) considering only statistical evidence and not the totality of the circumstances in determining whether a prima facie case of discrimination existed under Batson v. Kentucky," } ]

[ { "docid": "23256858", "title": "", "text": "offer Quintoni use immunity under 18 U.S.C. § 6002 et seq. so that Quintoni could testify without fear of incrimination. The district court denied this request and appellant claims that the district court’s refusal to grant Quintoni use immunity or to order the government to do so violated his right to a fair trial. We disagree. This Circuit has consistently held that a district court does not possess the statutory, common law, or inherent authority either to grant use immunity to a defense witness over the government’s objection or to order the government to do so. At the same time, we have also suggested without deciding that the federal constitution may in some extraordinary circumstances require either defense witness immunity or some remedial action by a district court to protect a defendant’s right to a fair trial. Appellant posits several potential bases for such a result, but we find none of them persuasive. Our recent opinion in United States v. Thevis, 665 F.2d 616 (5th Cir. 1982) disposes of much of appellant’s argument adversely to him. In Thevis, we held that a defendant has no federal constitutional right under the due process clause of the fifth amendment to defense witness immunity even though the testimony a defendant seeks to immunize is both exculpatory and unavailable from any other source. United States v. Thevis, supra, 665 F.2d at 638-640. We offered several reasons for our decision, id. at 640 & nn. 26 & 27, and concluded that “the immunity decision requires a balancing of public and private interests which should be left to the executive branch.” Id. 665 F.2d at 640. Thevis requires us to reject this due process basis for defense witness immunity. We also conclude that Thevis requires us to hold that any due process right to defense witness immunity cannot turn on whether the government proves its case against the defendant through the testimony of immunized witnesses. We rejected this basis in Thevis because the proffered defense testimony related to an issue which the government had established entirely through the use of non-immunized witnesses and because there was" }, { "docid": "11624146", "title": "", "text": "missing witness instruction, and misleading the jury with its instructions on possession. He further claims that his sentence is both erroneously calculated and unreasonably harsh. Finally, he maintains that the court should have dismissed the case against him because of government misconduct. II. We turn first to Ramos’s claims relating to his conviction, beginning with the two asserted problems that Ramos says require dismissal of the charge against him. A. Pre-indictment Delay Shortly after this court vacated Ramos’s original conviction and remanded the case to the district court, Ramos filed a renewed motion to dismiss the indictment on the ground that the government’s delay in filing the drug trafficking charge violated his due process rights. He emphasized that the indictment had been brought a week before the five-year limitations period would have barred his prosecution, and the second trial would occur more than nine years after the events at issue. Ramos complained that the passage of time had eroded his ability to mount a vigorous defense because of dimmed memories and the loss of witnesses and evidence. The district court denied the motion with a docket order, and we review that decision for abuse of discretion, United States v. Bater, 594 F.3d 51, 53 (1st Cir.2010). We have observed that “excessive pre-indictment delay can sometimes, albeit rarely, violate the Fifth Amend- merit’s Due Process Clause if the defendant shows both that the ‘delay caused substantial prejudice to his right to a fair trial’ and that ‘the [government intentionally delayed indictment ... to gain a tactical advantage.’ ” Id. at 54 (quoting United States v. Picciandra, 788 F.2d 39, 42 (1st Cir.1986)) (alteration and omission in original); see also United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In asserting prejudice, Ramos claims that he was denied the opportunity to present the testimony of José Néris Rodrí-guez (“José Néris”), who Ramos maintains was the driver involved in the high-speed chase and who died in 2006, while the government was able to take advantage of the delay by asking each testifying defense witness why he or" }, { "docid": "23108901", "title": "", "text": "‘evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’” Ballinger v. Kerby, 3 F.3d 1371, 1376 (10th Cir.1993) (quoting Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (opinion of Blackmun, J.)). Appellant claims that, had the prosecution disclosed the evidence of its pocket immunity agreements, he would have established “[AUSA] Watson’s pattern of threatening reluctant witnesses with criminal prosecution while simultaneously promising pocket immunity.” Appellant contends that, if he had established this pattern, the district court would have upheld his motion to dismiss the indictment. Thus, to determine whether the allegedly suppressed evidence is material for purposes of Brady and Giglio, we must decide whether it is reasonably probable that the proceeding’s result — the district court’s denial of appellant’s motion to dismiss — would have been different had the prosecution properly disclosed the evidence requested by appellant. After carefully reviewing the district court’s decision to deny appellant’s motion to dismiss, we find that it is not reasonably probable that, had the allegedly suppressed evidence been presented to the district court, the court would have ruled differently. In its order, the district court properly stated that an indictment may be dismissed for prosecutorial misconduct only where such misconduct “is flagrant to the point that there is some significant infringement on a grand jury’s ability to exercise independent judgment.” See United States v. Pino, 708 F.2d 523, 530 (10th Cir.1983). Appellant argued in his motion to dismiss that his indictment was based on self-incriminating grand jury testimony that he agreed to give only after AUSA Watson had assured him that he would not be prosecuted. The district court found, however, that “when defendant’s grand'jury testimony and the indictment are compared, ... in accordance with the representations of the government, the defendant was indicted on evidence distinct from his challenged grand jury testimony.” Appellant argues in this petition that, had the prosecution disclosed all of its informal immunity agreements," }, { "docid": "6246455", "title": "", "text": "telling the truth. He had every incentive to lie.” Responding in rebuttal, the prosecutor again raised Mohammed’s immunity agreement to demonstrate his incentive to testify truthfully. No buyer-seller jury instruction was requested by either party and none was given. On November 25, 2003, the jury found Johnson guilty of the conspiracy and possession counts. On May 14, 2004, Judge Kennedy imposed an enhancement for obstruction of justice under the Sentencing Guidelines and sentenced Johnson to seventy months in prison. Johnson now challenges his conviction and sentence. II. Discussion Johnson advances the following five arguments on appeal: (1) that prosecutors denied him a fair trial by improperly vouching for the truthfulness of government witness Mohammed during their case-in-chief and closing argument; (2) that the evidence presented by the government was not sufficient to prove Johnson guilty of conspiracy and possession beyond a reasonable doubt; (3) that the district court erred when it failed to instruct the jury on a buyer-seller defense; (4) that the government denied him the right to present witnesses in his defense by threatening Witness A with investigation and indictment; and (5) that the district court violated Johnson’s Sixth Amendment rights by enhancing his sentence for obstruction of justice. We consider each claim in turn. A. Fair Trial Johnson first contends that the government made improper remarks during examination and closing argument, thereby denying him a fair trial. Because Johnson did not object at trial to the remarks he now challenges, we review only for plain error. United States v. Renteria, 106 F.3d 765, 766 (7th Cir.1997). Under the plain error standard, the defendant must establish not only that the prosecutor’s remarks were improper and denied him a fair trial, but also that they prejudiced him by altering the outcome of the proceedings. United States v. Sandoval-Gomez, 295 F.3d 757, 762 (7th Cir.2002). 1. Testimony Concerning Mohammed’s Immunity Agreement During direct examination of Mohammed, the district court allowed the government to introduce the court’s order granting Mohammed immunity and compelling his testimony. The court specifically stated that introduction of the order was warranted to show that Mohammed’s testimony" }, { "docid": "5815164", "title": "", "text": "SNEED, Circuit Judge: Appellant Lester Wright appeals from a conviction of one count of distribution of a controlled substance in violation of 21 U.S.C. § 841, and from his sentence thereunder. He attacks his conviction, arguing that the trial court erroneously excluded a jury instruction tendering his theory of defense. In addition, Wright contends that his sentence must be vacated because the sentencing judge relied upon inaccurate information and impermissible inferences in committing him under the Federal Youth Corrections Act, 18 U.S.C. § 5010(b). We affirm. I. FACTS. On January 27, 1978, Wright and one William Tann were arrested in Tann’s automobile in which were found heroin and a gun. On March 14, 1978, a grand jury returned a three-count indictment against Wright and Tann: (1) Count I charged conspiracy between the two to distribute heroin; (2) Count II charged distribution of heroin by both defendants; and (3) Count III charged joint possession with intent to distribute the heroin found in the car. At trial and following presentation of the government’s case, the district judge granted defense motions for acquittal on the conspiracy counts. As to Tann, the judge also granted motions for acquittal on Count II and mistrial on Count III. After Wright’s defense was put on, the jury acquitted him of the joint possession charge (Count III), but found him guilty of distributing heroin (Count II). The government’s witness as to the distribution charge was the alleged distributee. She testified that she had seen Wright in possession of small quantities of heroin, that she had received heroin from him in November 1977, that they used heroin together on occasion, and that he had given it to her for her own sole use as well. In addition, she testified that Wright stated he obtained the heroin from Tann. Wright, testifying in defense, stated that he had “snorted” heroin with the government’s witness only on two occasions. Once he said she gave him money to purchase heroin and he purchased it and brought it back for them to share, and once they shared heroin already in her possession. The district" }, { "docid": "22758927", "title": "", "text": "and Ba-toon in the conspiracy. The majority of the remaining evidence, including the testimony of Zoletta about his own and Perez’s role in the conspiracy, was relevant to both Alcantera and Batoon regardless whether there was a single or multiple conspiracies. Moreover, the District Court’s jury instructions in this case dispel the concerns of prejudice to Alcantera and Batoon. With respect to the finding of a single conspiracy, the Court instructed the jury to acquit if the evidence established “separate or independent conspiracies[that] would be at variance with that charged,” and that “proof of a different conspiracy, that is, one without that specific objective [alleged in the indictment], would not be proof of the conspiracy charged in the indictment and would require a verdict of not guilty.” With respect to individualized findings of innocence or guilt, the District Court instructed the jury to give “separate consideration to and render a separate verdict as to each defendant based solely on the evidence pertaining to that defendant,” and to “exercise great care to evaluate the evidence or lack of evidence against each defendant individually ... without regard as to what your decision as to any other defendant might be.” In sum, we find that Alcantera and Ba-toon have failed to demonstrate (1) a variance between the single conspiracy as charged in the indictment and the evidence offered at trial to prove that conspiracy and, (2) regardless of the alleged variance, any prejudice to them as a result of the Government’s proof at trial. VI. Refusal to Immunize Del Rosario and Brady Violation Appellants Perez and Batoon claim that the District Court erroneously refused to immunize Del Rosario so that he could testify as a defense witness at trial. Based on the same set of facts, Perez and Batoon also claim that the Government failed to reveal exculpatory evidence to the defense with respect to Del Rosario’s statements to investigators, thereby warranting a new trial. We review the District Court’s refusal to immunize Del Rosario for abuse of discretion. United States v. Herman, 589 F.2d 1191, 1213-14 (3d Cir.1978). The District Court’s factual" }, { "docid": "23359115", "title": "", "text": "that the government disclose such arrangements, the opportunity for defense counsel to engage in rigorous cross-examination, and the instruction of the jury on the suspect nature of compensated testimony. Because of these safeguards and because “the compensated wit ness and the witness promised a reduced sentence are indistinguishable in principle and should be dealt with in the same way,” we hold that 18 U.S.C. § 201(c)(2) is not violated when prosecutors compensate informants for their cooperation. Motion to Sever. Drake maintains that the trial court erred by denying his motion to sever. He claims that the “spillover effect” of the evidence presented against Barnett confused the jury to such a degree that severance was required in order to avoid undue prejudice to his defense. We review the denial of a motion to sever for abuse of discretion. As a general rule, defendants who are indicted together are tried together. The decision whether to sever the trials of persons indicted together is within the discretion of the trial court, and the denial of a severance will not furnish grounds for reversal unless the defendant can demonstrate specific compelling prejudice against which the district court was unable to afford protection. A joint trial is especially appropriate when the defendants are alleged to have been participants in the same conspiracy. Severance is necessary only when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants or prevent the jury from making a reliable determination of guilt or innocence.” We find that the district court acted within its discretion in denying Drake’s motion to sever. Drake was not prejudiced in the presentation of any defenses as a result of being tried jointly with Barnett. Nor was severance required so that the testimony of a cocon-spirator could be compelled without violating the coconspirator’s fifth amendment rights. In fact, Drake’s only alleged co-conspirator, Barnett, testified at trial, was cross examined by Drake’s attorney, and generally gave information that supported Drake’s defense. Stripped to its essentials, Drake simply argues that the quantum of evidence against Barnett and" }, { "docid": "13326906", "title": "", "text": "OPINION OF THE COURT HANNUM, District Judge. Appellants, Joseph Chrzanowski and his brother Alex Chrzanowski, were convicted in the District Court for the District of New Jersey of (1) conspiracy to use extortionate means to collect extensions of credit (Count I), (2) using extortionate means to collect extensions of credit (Count II) and (3) using extortionate means to punish for non-payment of an extension of credit (Count III), all in violation of 18 U.S.C. § 894. Both defendants were sentenced to ten years imprisonment on each count, the sentences to run concurrently. The main witness for the Government was one, James Jelicks. Jelicks testified that he had taken a $400 loan from the Chrzanowski brothers, paid it back several times over, suffered several beatings at their hands for non-payment, and yet was still in debt to them. After an alleged brutal beating on December 11,1971, Jelicks went to the police. The defense attempted to establish that the beatings had never occurred, that in fact Jelicks had been intoxicated on December 11, 1971, and that the injuries received on that date were self-inflicted. In addition, two defense witnesses testified to the good character of the appellants. Appellants urge that the trial court committed five specific errors: 1— in permitting certain rebuttal testimony ; 2— in failing to grant a mistrial when the jury glimpsed the defendant in handcuffs and in the custody of a United States Marshal; 3— in failing to include an entrapment instruction in the charge to the jury; 4— in refusing to read lengthy portions of the transcript to the jury when the jury so requested during its deliberations, and 5— in failing to include an instruction on immunity or inducement to testify in the charge to the jury. The appellants request a reversal of the conviction, or in the alternative, a New Trial. Appellants first contend that the court abused its discretion in admitting the testimony of two government witnesses in rebuttal. At the trial the defense presented three witnesses who disputed Jelicks’ account of one of the extortionate loan collections in issue, and two character witnesses" }, { "docid": "22754753", "title": "", "text": "of the record, the finding that the prosecutors knew the evidence to be false or misleading, or that the Government caused the agents to testify falsely, is clearly erroneous. Although the Government may have had doubts about the accuracy of certain aspects of the summaries, this is quite different from having knowledge of falsity. The District Court found that a prosecutor was abusive to an expert defense witness during a recess and in the hearing of some grand jurors. Although the Government concedes that the treatment of the expert tax witness was improper, the witness himself testified that his testimony was unaffected by this misconduct. The prosecutors instructed the grand jury to disregard anything they may have heard in conversations between a prosecutor and a witness, and explained to the grand jury that such conversations should have no influence on its deliberations. App. 191. In light of these ameliorative measures, there is nothing to indicate that the prosecutor’s conduct toward this witness substantially affected the grand jury’s evaluation of the testimony or its decision to indict. The District Court found that the Government granted “pocket immunity” to 23 witnesses during the course of the grand jury proceedings. Without deciding the propriety of granting such immunity to grand jury witnesses, we conclude the conduct did not have a substantial effect on the grand jury’s decision to indict, and it does not create grave doubt as to whether it affected the grand jury’s decision. Some prosecutors told the grand jury that immunized witnesses retained their Fifth Amendment privilege and could refuse to testify, while other prosecutors stated that the witnesses had no Fifth Amendment privilege, but we fail to see how this could have had a substantial effect on the jury’s assessment of the testimony or its decision to indict. The significant point is that the jurors were made aware that these witnesses had made a deal with the Government. Assuming the Government had threatened to withdraw immunity from a witness in order to manipulate that witness’ testimony, this might have given rise to a finding of prejudice. There is no evidence" }, { "docid": "23226216", "title": "", "text": "from hindsight. Even if an error is made, however, it does not warrant a reversal of a conviction if the error had no effect on the judgment, as the Sixth Amendment guarantee of counsel is to ensure the reliability of the judgment. Two witnesses who allegedly would have testified that Sharp was working in their garage daily in 1988 did not show up at the courthouse. The defense had relied on a government subpoena, and Daryon Sharp and his sister had contacted them the day before their testimony was scheduled. The individuals had assured the defense that they would be at the courthouse to testify (R3-559-60). Trial counsel made a decision not to pursue the matter when the witnesses did not appear, expressing his doubts to the court as to the benefit the testimony might be to the defense (R3-535). Sharp now argues that because his attorney did not issue a defense subpoena to the witnesses, he could not prove his defense of non-involvement or withdrawal from the conspiracy. The evidence of Sharp’s guilt at trial was overwhelming. The “alibi” that these witnesses may have produced would have only covered part of the period charged in the indictment, and would not have directly refuted testimony of Sharp’s involvement. We thus conclude that even had the witnesses’ testimony been presented to the jury, the verdict would have remained the same. Because we find that the actions of counsel did not prejudice the defense, we need not decide if such actions were ineffective. Sharp also alleges that he was prejudiced because his counsel did not move for a mistrial when the government allegedly coached and subsequently impeached Herman Hill in his testimony regarding a purchase of cocaine from co-defendant Mack McMillan. This allegation is patently meritless. As a result of Hill’s change in testimony, Sharp’s counsel moved for dismissal of the relevant count of possession with intent to distribute against Sharp. The district court granted the motion. The government also dismissed all its charges against McMillan. CONCLUSION For the forgoing reasons, the convictions and sentences of defendants Andrews, Shearls, Crimes, Melvin Wayne" }, { "docid": "1337258", "title": "", "text": "U.S.C. § 924(c)(1). B Straub timely appealed to this court for the first time on February 21, 2006. In that appeal, Straub challenged: (1) the district court’s denial of a motion to sever Counts 3 and 4 of the indictment from the rest of the trial; and (2) the district court’s denial of a request to compel the prosecution to grant use immunity to defense witness Baumann. In an unpublished memorandum, we held that the district court did not abuse its discretion in denying the motion to sever. See United States v. Straub, 224 Fed.Appx. 633 (9th Cir.2007). Considering the district court’s refusal to compel use immunity, we remanded for an evidentiary hearing because we were unable to determine from the record whether or not compelled use immunity was constitutionally required. As we characterized Straub’s position, “[Straub] does not allege prosecutorial misconduct, but he does maintain that immunity was warranted because the government gave immunity or special considerations to many of its witnesses, while refusing immunity for Bauman[n].” Id. at 635. We stated that on remand, Straub would need to show, inter alia, that “the government granted immunity to certain witnesses while denying immunity to a witness who would have ‘directly contradicted’ testimony from the immunized government witness.” Id. (citing Williams, 384 F.3d at 600). We suggested that the district court gather “[i]nformation on why Bauman[n] required immunity, greater detail about his proposed testimony and the immunity agreements the government gave to its other witnesses.” Id. 1 On April 24, 2007, on remand from this court, the district court held an evidentiary hearing. The court meticulously followed our instructions and gathered the information suggested by our order. First, the district court cleared the courtroom of everyone except Baumann and his counsel and took in camera testimony as to why Baumann required immunity. This portion of the record remains under seal. Although Baumann’s counsel provided more detail in the sealed portion of the record, his statements only elaborated on the arguments made in the presence of all parties’ counsel when this issue was first discussed at Straub’s trial in 2006. In" }, { "docid": "22561702", "title": "", "text": "however, a multiple conspiracy instruction would have been inappropriate. The indictment still gave Wahl ample notice of the incriminating facts alleged against him, and his conviction in this case will bar future prosecutions involving the beef but not prosecutions involving fish. Furthermore, the proof of the two conspiracies, as supposed here, did not involve such confusing evidence that, in light of the trial court’s admonition to consider each defendant’s case separately, evidence that was applicable only against the other three defendants “spilled over” to prejudice Wahl. Had it been raised directly, the variance question also would cause us to consider whether, if Wahl was involved in a conspiracy only with Farrell and Sullivan, he was improperly convicted of the substantive offense of receipt and possession under 18 U.S.C. § 659 on the jury’s mistaken impression that he was vicariously liable for the acts of the other conspiracy involving the other defendants. See Pinkerton v. United States, 328 U.S. 640, 646-48, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946). Ample evidence was introduced, however, to convict Wahl of the substantive offense independent of any conspiracy. The beef was stolen and was in interstate commerce, Wahl knew that it was stolen because of Sullivan’s reports to him, and Wahl was in at least constructive possession of the beef at Marion and Avon because he had helped set up the “drop” sites there. See United States v. Cordo, 186 F.2d 144, 146—47 (2d Cir. 1951). Wahl’s alternative argument that he should have been granted immunity for his involvement in conspiracies involving fish so that he could testify about his noninvolvement in the beef conspiracy here is utterly without merit. Assuming that a grant of immunity to a defense witness can be required in some instances, under the most lenient rule regarding court-ordered immunization of defense witnesses, Government of Virgin Islands v. Smith, 615 F.2d 964, 972 (3d Cir. 1980), Wahl failed to make the necessary showings. Specifically, he failed to proffer testimony that was clearly exculpatory and failed to show that it was essential. Id. As we did in United States v. Davis," }, { "docid": "12139729", "title": "", "text": "and that he considered both curative jury instructions and the introduction of Rose’s grand jury testimony as alternatives to a mistrial. Even if “some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions,” we must accord the highest degree of respect to the trial judge’s evaluation of the likelihood of juror bias. Arizona v. Washington, 434 U.S. at 511, 98 S.Ct. at 833. We therefore hold that the district judge’s decision that potential juror bias justified a mistrial under the manifest necessity standard was an exercise of sound discretion, and that retrial does not violate the double jeopardy clause. Shaw’s arguments to the contrary are not persuasive. First, the trial judge’s decision that jury instructions could not cure the prejudice to the government's case is entitled to great deference, and we decline to substitute our judgment for his. Second, it is clear from the record that defense counsel’s most prejudicial statements could not have been supported at trial without Rose’s testimony. Evidence of a witness’ lack of credibility is irrelevant if the witness does not testify, and Rose’s statements to FBI and defense investigators would have been inadmissible hearsay. Third, there is no evidence of undue delay or negligence in the government’s failure to obtain immunity for Rose before trial. The prosecutor acted to obtain immunity for Rose as soon as he learned that she would refuse to testify. Finally, a careful reading of the prosecutor’s opening statement shows that he obeyed the judge’s warning to refrain from references to Rose’s expected testimony and did not in any way invite defense counsel’s prejudicial remarks. AFFIRMED. . The trial judge also instructed the jury that the witness’ testimony should be considered with greater caution than that of other witnesses because he testified that he was an accomplice. . Rose’s argument that the statements would have been admissible as admissions against interest under Fed.R.Evid. 804(b)(3) is not persuasive. As the government points out, “[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly" }, { "docid": "6990740", "title": "", "text": "upon the remand we are ordering. With respect to use of the immunized testimony at trial, however, there is no dispute that the government introduced, over objection, all the Pelletiers’ allegedly false immunized testimony as well as portions of their concededly truthful immunized testimony, and that no instruction was given to limit use of that evidence to the two perjury counts. The jury convicted both Remi and Robert only of the conspiracy to defraud the United States alleged in count one of the indictment; it acquitted them on all other counts, including the perjury charges. They each received a sentence of thirteen months to run consecutively with the terms of imprisonment they were then serving on their earlier guilty pleas. They now appeal. II. DISCUSSION Remi and Robert argue that their cooperation/immunity agreements conferred use immunity which precluded the government from using either their immunized testimony or evidence directly or indirectly derived from that testimony in any criminal prosecution except one for perjury. Accordingly, they argue that use of their immunized testimony before the grand jury mandated dismissal of the nonperjury charges in the indictment, including the conspiracy charge — the only one on which they were convicted. Alternatively, they contend that use of the immunized testimony at trial requires reversal and remand for a new trial on the conspiracy count, and that on the retrial, neither the immunized testimony nor any evidence derived directly or indirectly therefrom may be used. In response, the government asserts, first, that the Pelletiers waived their challenge to the indictment by failing to raise the immunity defense by pretrial motion under Fed.R.Crim.P. 12(b), and, second, that although the agreements did confer use immunity, defendants’ breaches of their promises to testify truthfully abrogated the agreements and rendered use of the testimony permissible for any and all crimes. We reject both of the government’s contentions. A. Waiver A challenge to an indictment on the basis that it was improperly obtained through use of immunized testimony is timely under rule 12(b) if presented either by pretrial motion or at trial. United States v. Roberson, 872 F.2d 597," }, { "docid": "22190019", "title": "", "text": "alleged incidents. We cannot determine from the court’s explanation of its ruling whether it denied an evidentiary hearing because it concluded that, assuming that Han’s allegations are true, they do not constitute witness intimidation. This possible interpretation of the court’s comments is undermined by its statement that had the affidavit been filed at an earlier date, the court would have had enough time to determine whether there is any merit to the witness intimidation issue. Because the court did not hold an evidentiary hearing we do not know whether the grant of immunity to Han was conditioned upon his promise not to testify as a defense witness, or the truth of Han’s allegation that the prosecutor threatened to void the grant of immunity if Han did so. The former Fifth Circuit has previously ruled that a plea agreement that provides that it will be void if the accused testifies on behalf of a codefendant violates due process. United States v. Henricksen, 564 F.2d 197, 198 (5th Cir.1977). In Henricksen, the witness refused to testify on behalf of his codefendants. Id. Here, Schlei alleges that the Government intimidated a defense witness. That witness, however, testified for the defense at trial. We cannot decide today whether the Henricksen rule applies to a grant of immunity in a case where the witness testifies for a codefendant, notwithstanding an attempted intimidation, because of the absence of a proper record and findings regarding the alleged conduct of the prosecution or its impact on the witness’ testimony. Where defendants present evidence to the district court that the government intimidated a defense witness a trial court must grant a hearing to determine whether the allegations of intimidation are true. If the witness did not testify, and the allegations of intimidation are true, no prejudice need be shown. See United States v. Goodwin, 625 F.2d 693, 703 (5th Cir.1980) (“On this appeal we now face unresolved claims of government intimidation of defense witnesses. If we were not reversing the convictions on other grounds, we would be required to remand to the district court for findings on the validity" }, { "docid": "2802335", "title": "", "text": "speaking, when a gratuity prosecution has established each of these elements, the jury can rationally decide the intent question either way. While the jury could have accepted Schaffer’s defense, finding the gratuities to have been motivated by a desire either to generate warm feelings towards Tyson Foods or to satisfy Don Tyson’s penchant for surrounding himself with celebrities, our criminal justice system leaves it to the jury to sort out the competing constructions of the evidence. B. Schaffer’s Cross-Appeal Having decided that the district court erred in granting Schaffer’s motion for a judgment of acquittal on the Meat Inspection Act count, it becomes necessary to review the court’s conditional denial of Schaffer’s alternative motion for a new trial. Schaffer seeks a new trial on two separate grounds, claiming that each creates sufficient doubt in the integrity of the jury verdict to constitute reversible error. Because we find each of the alleged grounds harmless under the prevailing standard for assessing trial errors, we affirm the district court’s order and deny Schaffer’s cross-appeal. 1. The Rule 608(a) Question Schaffer challenges a series of rulings by the district court which collectively precluded the defense from introducing testimony regarding the government’s grant of immunity to both John and Don Tyson. During cross-examination, government witness John Tyson, who had been identified to the jury as an unindicted co-conspirator and as Schaffer’s boss, testified that he and Schaffer had never discussed the possibility of influencing Secretary Espy through largess, nor did he ever think that Espy could be influenced thereby. See 6/19/98 Tr. at 948. Believing that these statements completely exonerated him, Schaffer sought to introduce the fact of the Tysons’ immunity to keep the jury from assuming that John Tyson could be prosecuted were he to admit to having discussions about influencing Secretary Espy. Unless cured of this false presumption, Schaffer argued, the jury would likely dismiss John Tyson’s testimony on the grounds that he had a strong incentive to prevaricate. The district court excluded this line of questioning, concluding that it would contravene Federal Rules of Evidence 608(a)’s proscription on bolstering a witness whose" }, { "docid": "14760439", "title": "", "text": "he, by his act or acts, endeavored to make it successful. This language has been specifically found proper, in United States v. Umans, supra, 368 F.2d at 728. Finally, Barash contends that the trial judge failed properly to present his defense theory to the jury. He claims that his case was characterized as a mere denial of the testimony of the Government’s witnesses, thus tending “to eliminate from consideration by the jury of [his] factual testimony of the circumstances of each audit.” We have examined the record, however, and find that the factual summary was fair and accurate. Toward the beginning of his instructions, the trial judge said: Before considering the separate counts in the indictment I call the jury’s attention to the fact that in these instructions I do not propose to review or summarize the evidence because the trial has not been so long as to make that necessary or desirable. You have heard the evidence presented and on yesterday you had the benefit of the closing arguments of counsel. If I mention any evidence in the course of these instructions it will be only for the particular purpose which will be indicated. You are to attribute no significance to my failure to mention any evidence. Following brief summaries of the testimony of Clyne and DeSibio, the trial judge told the jury that he referred to “this testimony, * * * which you heard Mr. Barash deny from the witness stand, not to indicate any opinion as to whether you should accept that testimony * * * or not but solely in order to relate the government’s evidence to the different counts and for no other purpose.” Furthermore, the summary of Coady’s testimony was followed by the statement to the jury that “[y]ou [the jury] heard Mr. Barash testify that he did give to Coady an envelope containing $50, but under circumstances different from those to which Coady testified, and with an intent different from that alleged in the indictment.” We find no unfairness in these instructions to the jury. Duplication of Counts The concluding point for our" }, { "docid": "1337291", "title": "", "text": "in which the prosecution intentionally caused the defense witness to invoke the Fifth, “[i]f the district court finds such prosecutorial misconduct by a preponderance of the evidence, it should enter a judgment of acquittal for [the defendant] unless the prosecution invokes 18 U.S.C. §§ 6002-6003 by asking the district court to extend use immunity to [the defense witness] at a new trial.” Id. (footnote omitted). Where use immunity is required because of a selective denial of use immunity that had the effect of distorting the fact-finding process, the prosecution has a third option as well: it may, at a new trial, attempt to proceed without the witness whose testimony would have been contradicted by the defense witness. These three options give the prosecution several choices and provide some mitigation for the intrusion on prosecutorial discretion that compelled use immunity causes. A survey of our opinions suggests that in the majority of cases where a defendant seeks to compel immunity for a witness, that witness’s testimony will not be “directly contradictory” to that of the prosecution’s witness, or there will have been no distortion of the fact-finding process, and the district court may deny immunity on those bases. See Alvarez, 358 F.3d at 1216 (the testimony sought did not directly contradict statements by the government’s witnesses); Duran, 189 F.3d at 1087 (neither the Lord test nor the Westerdahl test was even applicable); Baker, 10 F.3d at 1414-15 (defendant not even charged with the crime about which defense witness offered testimony); Brutzman, 731 F.2d at 1452 (evidence was cumulative or “not exculpatory”); Alessio, 528 F.2d at 1082 (“The testimony sought by appellant was cumulative. ... ”). As we discuss below, this ease appears to be the rare case in which the testimony was in fact directly contradictory. Furthermore, the prosecution granted immunity and other incentives to eleven of Straub’s co-conspirators, while denying immunity to the one witness who had testimony that, if believed, would make the government’s key witness both a perjurer and possibly the actual perpetrator of the crime. There is an unmistakable ah' of unfairness to a trial conducted under" }, { "docid": "23588100", "title": "", "text": "is presumed to follow the \"district court instructions and therefore did not speculate as to the reason why the charges against the attorney defendants had been removed from its consideration.” McClatchey, 217 F.3d at 833. Further, the statements to the district court and arguments to the jury on this issue by defense counsel clearly reveal their desire to present the acquittal of the attorney defendants to the jury; any reluctance in informing the jury of the acquittals must have accrued after these arguments were unsuccessful. . During the trial, the district court granted defendants the alternative relief sought 'in their “Motion for Order Compelling Judicial Immunity.” See Anderson, 85 F.Supp.2d at 1081 n. 29. Specifically, the district court gave defendants the opportunity to call the attorneys of some of these witnesses to testify, pursuant to Rule 807 of the Federal Rules of Evidence, about what the witnesses told FBI agents in government interviews. See id. Although they sought this relief, defendants decided against calling these attorneys as witnesses “based on strategic trial issues.” . Notwithstanding the basis for our decision, we have reviewed every document cited by the LaHues on this issue in their appellate briefs. In their \"Motion for Order Compelling Judicial Immunity” filed on the close of the government's case, the LaHues listed twenty unindicted co-conspirators and presented \"proffers of potential testimony” in varying levels of detail for fourteen of them. They repeated this list and attached a copy of these \"proffers” to their motion for a new trial, which they inexplicably do not address or cite on appeal. Further, although the La-Hues cite to the defense witness lists in their appellate briefs, they failed to provide these documents in the record on appeal. Even if we were to consider this material as the basis for the LaHues’ appeal of this issue, there are three reasons why it is insufficient to find the district court abused its discretion. First, we do not know whether the twelve witnesses on appeal are a subset of the twenty listed in these motions, or are others from the over 160 people defendants" }, { "docid": "5557862", "title": "", "text": "wife was ameliorated, at least somewhat, by the Government’s offer to let appellant use the transcript of the wife’s testimony at the grand jury. In any case, most of the delay up to the time of the wife’s death was attributable to appellant; any prejudice on this count is a consequence of appellant’s own action. 4. Statements by prosecution during trial. Appellant complains that three statements by the prosecution or witnesses so prejudiced appellant that we must overturn his conviction: (1) During the opening argument, the prosecution allegedly stated that it would prove more than it actually did. Admittedly, not.everything alleged was proved in the Government’s case in chief. It appears, however, that a police officer called as a hostile witness by the defense did testify to everything which had not already been shown; thus it is impossible to see how appellant could have been prejudiced by these allegations. (2) Appellant contends that mention by a police officer, who testified for the defense as a hostile witness, of an alleged attempt by the appellant to have the complaining witness murdered is grounds for reversal. Appellant’s counsel had not admonished the witness not to mention this subject. More significantly, appellant’s trial counsel rejected an offer of a mistrial. Under these circumstances, this mention is not reversible error. (3) The final comment was made by the same police officer who had been called as an adverse witness by the defense. The officer mentioned a fact that the trial judge had specifically ordered the attorneys not to mention during the trial. This revelation was inadvertent. In addition, the witness had never been instructed not to mention the matter by the defense counsel who called him. 5. Admissibility of polygraph examination. Appellant argues that the trial court erred in failing to conduct an evidentiary hearing on the admissibility of a polygraph test that allegedly supported his innocence. The leading ease in this Circuit is Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), which holds such tests inadmissible. This case has been followed uniformly in this and other Circuits and there has" } ]

[ { "docid": "22385427", "title": "", "text": "on newly discovered evidence or a change in the applicant’s circumstances since the time of the hearing. See 8 U.S.C. § 1229a(c)(7)(B). A petitioner may also move to reopen for the purpose of submitting a new application for relief, provided such motion is accompanied by the proper application for relief and all supporting documentation, and the evidence sought to be offered is material and was not avail able and could not have been presented at the former hearing. See 8 C.F.R. § 1003.2(c)(1). Romero-Ruiz requested remand — for the purpose of considering whether he was eligible for cancellation of removal — in the opening brief of his second appeal to the BIA, not in an official motion to remand. The BIA correctly treated this request as a motion to reopen. See Rodriguez, 841 F.2d at 867. The request for remand was not accompanied by an application for cancellation of removal. In addition, the evidence Romero-Ruiz sought to offer- — evidence that his drug paraphernalia conviction had been set aside — had been available as early as October 2003. Under the circumstances present here, the BIA did not abuse its discretion in determining that Romero-Ruiz did not satisfy the procedural requirements for a remand motion. Romero-Ruiz argues that the BIA violated his due process rights by announcing a new procedural rule without notice. That a request for remand may be treated as a motion to reopen has been established in case law, and that a motion to remand requires a completed application for relief has been codified. See Rodriguez, 841 F.2d at 867; 8 C.F.R. § 1003.2(c)(1). The BIA did not announce a new procedural rule without notice. VI For the foregoing reasons, we deny Romero-Ruiz’s petition for review. PETITION DENIED. . Because the BIA's decision in this case was unpublished, and cites no precedential BIA decision, we do not apply the principles of deference outlined in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011-13 (9th Cir.2006). The government did not invoke" } ]

[ { "docid": "22892728", "title": "", "text": "timely mailed a Change of Address form to the BIA. B. The BIA failed to weigh the evidence that Hernandez submitted in support of her claim that she did not receive notice of the BIA’s decision The BIA’s decision in this case also conflicts with our holding in Singh with respect to Hernandez’s claim that she did not receive a copy of the BIA’s decision. As we explain supra, the BIA’s one-paragraph ruling on Hernandez’s motion to reopen and reinstate/reissue fails to mention that Hernandez submitted a declaration in support of her motion, let alone to undertake, as required by Singh, any weighing of the evidence contained in that declaration and the supporting documents to inform its conclusion that Hernandez received adequate notice of its decision. Hernandez’s declaration explains that she did not receive the BIA’s decision of October 21, 2005, and provides a plausible explanation as to why — her change of address. Both Hernandez’s declaration, in which she stated that she mailed the Change of Address form to the BIA prior to the issuance of its October 21, 2005, decision, and the photocopy that she provided of that Change of Address form constitute colorable evidence in support of her claim that the BIA did not meet its obligations under 8 C.F.R. § 1003.1(f) to provide her with adequate notice of that decision. The BIA was required to consider the “weight and consequences” of that declaration. Singh, 494 F.3d at 1173; see also Mohammed, 400 F.3d at 793 (holding that the BIA abused its discretion when it failed to consider and weigh all of the evidence submitted by a petitioner). The BIA’s failure to mention Hernandez’s declaration, or to mention that a copy of the Change of Address form was supplied to the BIA along with that declaration, inevitably led to its failure to consider the weight and consequences of the declaration and the accompanying documents as compared to its own records, “procedures or processes,” in determining whether Hernandez received adequate notice of its decision. Singh, 494 F.3d at 1173. The BIA’s additional statement that “our prior decision was" }, { "docid": "22784755", "title": "", "text": "must file her application within one year after arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The limitations period will be tolled if the applicant can establish changed circumstances that materially affect her eligibility for asylum. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4)®. Contrary to the government’s argument, we have jurisdiction to review an agency’s changed circumstances determination. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.2007) (per curiam) (holding that the Real ID Act restored jurisdiction over the “changed circumstances” question because this question involved the application of a statutory standard to undisputed facts). Petitioners argue that Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), and Lolong v. Gonzales, 400 F.3d 1215 (9th Cir.2005) (“Lolong I”), rev’d, 484 F.3d 1173 (9th Cir.2007) (en banc) (“Lolong II”), constituted changed circumstances because they changed United States law in a way that materially affects their eligibility for asylum. 8 C.F.R. § 208.4(a)(4)(i)(B). We review the IJ’s changed circumstances determination for substantial evidence. See Ramadan, 479 F.3d at 657. Petitioners’ argument fails because both Sael and Lo-long were decided after petitioners filed their asylum applications. Accordingly, those decisions could not have tolled the one-year statute of limitations. We affirm the IJ’s denial of petitioners’ asylum application as untimely. IV. WITHHOLDING OF REMOVAL Unlike asylum, there is no statutory time limit for filing a withholding application. Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir.2004) (citing 8 U.S.C. § 1231(b)(3)). Accordingly, petitioners’ application for withholding of removal is not time-barred. Petitioners argue that the BIA erred by failing to apply disfavored group analysis to their withholding claim because Christians are a disfavored group in Indonesia. We agree and remand to the BIA to use the disfavored group analysis in determining whether petitioners are entitled to withholding of removal. A. Christians Are a Disfavored Group in Indonesia A “disfavored group” is “a group of individuals in a certain country or part of a country, all of whom share a common, protected characteristic, many of whom are mistreated, and a substantial number of whom are persecuted” but who are “not threatened by a" }, { "docid": "22657202", "title": "", "text": "experience may be enough to establish that she is automatically entitled, without more, to protection under CAT. Cf. Qu, 399 F.3d at 1196 (holding petitioner automatically entitled to withholding on the basis of continuing persecution). Therefore, we hold that on remand the agency must consider Mohamed’s CAT claim, along with her asylum and withholding claims. III. CONCLUSION Because Mohamed has demonstrated that she was prejudiced by her attorney’s ineffective assistance, the BIA abused its discretion in denying her motions to reopen and reconsider. We grant her peti tion for review and remand with instructions to grant the motion to reopen. - GRANTED AND REMANDED. . Petitioner’s name is spelled inconsistently throughout her brief, either as \"Mohammed” or \"Mohamed.” Because she wrote her name with a single \"m” in her signed declarations, we will use that spelling. . We note that many courts and the BIA refer to the practice at issue here as FGM. We see no need for using initials rather than the full three word phrase. We are short neither of paper nor of ink. The use of initials, if it has any effect, serves only to dull the senses and minimize the barbaric nature of the practice. The further bureaucratization of the language would serve no useful purpose here. We refer to the custom however, because the initials rather than the words appear occasionally in this opinion when quoting portions of other decisions. .To support this statement, the motion cited \"Exhibit C.” No such attachment appears in the certified administrative record. According to the record, Mohamed's second motion, discussed below, did include an Exhibit C — a report -from the World Health Organization on female genital mutilation, stating that ninety-eight percent of the women in Somalia are subjected to the practice. . In her petition, Mohamed also requested review of the BIA's earlier decision to dismiss her appeal on the merits. By an earlier order, we limited review to the denial of the motion to reconsider and remand, because the direct appeal was untimely. We have previously held that where, due to counsel’s error, a petition for" }, { "docid": "22657174", "title": "", "text": "to reopen and reconsider for abuse of discretion and reverse only if the Board acted arbitrarily, irrationally, or contrary to law. Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002); Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). We review factual findings for substantial evidence. Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.2004). Questions of law, including claims of due process violations due to ineffective assistance, we review de novo. Id. 1) whether [it] should reissue its [first] decision, or take other measures to ensure that the decision sets forth the intended statement of the agency on the petitioner's first motion to reopen, and 2) whether petitioner’s second motion to reopen is barred by the numerical limitation on motions to reopen, in light of any action taken upon remand with regard to the [first] decision. A. Procedural issues As described above, Mohamed’s case is characterized by a series of errors committed by the agency responsible for adjudicating her claim, and by her attorneys. Before considering the question whether Mohamed has demonstrated ineffective assistance sufficient to warrant reopening, we must address the procedural complications raised by the “woefully inadequate” adjudication and representation below. See Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir.2004). Mohamed’s first motion, which was filed as a motion to reconsider and remand, erroneously stated that Mohamed feared future female genital mutilation. Nonetheless, the attached documents, including Mohamed’s affidavit and the physician’s report, made clear that the claim was based on past persecution, and the motion unambiguously asked the BIA to consider her former counsel’s ineffective assistance in failing to raise the mutilation issue. The BIA properly construed the motion as a motion to reopen. Our case law holds that a motion to reopen — not a motion to reconsider — is the proper “avenue ordinarily available to pursue ineffective assistance of counsel claims.” Iturribarria v. INS, 321 F.3d 889, 896-97 (9th Cir.2003) (instructing the BIA to treat motions based on ineffective assistance of counsel claims as motions to reopen); see also Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.2004). The BIA abused its discretion," }, { "docid": "12333141", "title": "", "text": "noted above, under 8 U.S.C. § 1158(a)(2)(B), an alien seeking asylum must file an application within one year of arrival in the United States. See 8 C.F.R. § 208.4(a)(2)(i)(A). There are two exceptions to this rule: late applications may be considered “if the alien demonstrates to the satisfaction of the Attorney General either [1] the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or [2] extraor dinary circumstances relating to the delay in filing an application.” 8 U.S.C. § 1158(a)(2)(D) (alterations added); 8 C.F.R. § 208.4(a)(4), (5). Viridiana argues that she is eligible for relief under the later exception, “extraordinary circumstances,” due to the mishandling of her asylum application by an immigration consultant. The IJ construed Viridiana’s argument as a claim of ineffective assistance of counsel and determined that although ineffective assistance of counsel is one of the enumerated “extraordinary eircum.stanees,” which will excuse the untimely filing of an asylum application, see 8 C.F.R. § 208.4(a)(5)(iii), Viridiana failed to demonstrate that she qualified for the exception. The issue of whether a petitioner has demonstrated “extraordinary circumstances” warranting equitable tolling is a mixed question of fact and law and, therefore, subject to our review. See Husyev v. Mukasey, 528 F.3d 1172, 1181 (9th Cir.2008) (holding that petitioner’s claim to “extraordinary circumstances” was a question of law and that we therefore have jurisdiction to review it); accord Dhital v. Mukasey, 532 F.3d 1044, 1049-52 (9th Cir.2008). The government argues that, because relevant facts are in dispute, we lack jurisdiction to review the BIA’s determination that Viridiana’s asylum application is time barred. See Ramadan, 479 F.3d at 650. We disagree. The only facts that might be considered in dispute were the terms of Viridiana’s contract with Muaja. Indeed, the IJ noted Viridiana’s inability to produce a copy of her contract as a weakness in Viridiana’s claim. Yet, the government presented no competing evidence concerning the terms of the contract and “cited no evidence that can support a finding that [Viridiana’s] version of the facts was incredible, nor do we find any. A reasonable fact finder would therefore be compelled" }, { "docid": "22657179", "title": "", "text": "F.3d 1048, 1053 (9th Cir.2003) (Reinhardt, Circuit Judge, concurring), and has rendered its considered-judgment regarding a lack of prejudice. The government’s request to remand indicated no willingness to have the BIA reconsider the substance' of that dispositive ruling. -See note 6 supra. Accordingly, we now proceed to review the BIA’s decisions on Mohamed’s motions, including its second (corrected) decision in which it reaffirmed its earlier decision to refuse, on the ground of lack of prejudice, to allow Mohamed to reopen her proceeding on the ground of ineffectiveness of counsel. B. Ineffective assistance of counsel claim Although there is no Sixth Amendment right to counsel in a deportation proceeding, the due process guarantees of the Fifth Amendment “still must be afforded to an alien petitioner.” Singh, 367 F.3d at 1186. Ineffective assistance of counsel amounts to a violation of due process if “the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Maravilla Maravilla, 381 F.3d at 858 (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)). To prevail, the petitioner must demonstrate first that counsel failed to perform with sufficient competence, and, second, that she was prejudiced by counsel’s performance. Id. However, she need not show that the counsel’s ineffectiveness definitively changed the outcome. Rather, prejudice results when “the performance of counsel was so inadequate that it may have affected the outcome of the proceedings.” Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.1999) (emphasis added). A petitioner who seeks to reopen on the basis of ineffective assistance of counsel is usually expected to comply with the procedural guidelines set forth in Matter of Lozada, 19 I. & N. Dec. at 639 (requiring petitioner to submit an affidavit explaining his agreement with the former counsel, offer proof that prior counsel has been informed of the allegations and given an opportunity to respond, and show that a complaint against prior counsel was filed with the proper authorities); see also Iturribarria, 321 F.3d at 900. Mohamed has done so: She included a declaration explaining her agreement with her first attorney, a letter from that attorney" }, { "docid": "22657178", "title": "", "text": "as an ineffective assistance of counsel claim.”). In this case, however, the BIA has already had a second opportunity to address the claim and has done so. 'Mohamed filed a second motion in which she made it clear that her ineffective assistance claim was based on her past genital mutilation. Although the motion was improperly titled a motion to reopen, its purpose was to ask the BIA to reconsider its previous decision, and to make the BIA aware that it might have overlooked evidence in the record. In response to this motion, the BIA issued an opinion in which it acknowledged the “typographical” mistakes in its prior opinion, and explained that it had found that Mohamed failed to demonstrate prejudice as the result of any ineffective representation. In the alternative, it considered the second motion .as a motion to'reconsider, and denied it on the basis that its initial decision was correct. As cliché-lovers are wont to say, the BIA has already had two “bites at the apple,” see Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1053 (9th Cir.2003) (Reinhardt, Circuit Judge, concurring), and has rendered its considered-judgment regarding a lack of prejudice. The government’s request to remand indicated no willingness to have the BIA reconsider the substance' of that dispositive ruling. -See note 6 supra. Accordingly, we now proceed to review the BIA’s decisions on Mohamed’s motions, including its second (corrected) decision in which it reaffirmed its earlier decision to refuse, on the ground of lack of prejudice, to allow Mohamed to reopen her proceeding on the ground of ineffectiveness of counsel. B. Ineffective assistance of counsel claim Although there is no Sixth Amendment right to counsel in a deportation proceeding, the due process guarantees of the Fifth Amendment “still must be afforded to an alien petitioner.” Singh, 367 F.3d at 1186. Ineffective assistance of counsel amounts to a violation of due process if “the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Maravilla Maravilla, 381 F.3d at 858 (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)). To prevail," }, { "docid": "22657204", "title": "", "text": "review is untimely, the error deprives the alien of the appellate proceeding entirely and prejudice is presumed. See Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir.2000). However, Mohamed does not raise this potential claim of ineffective assistance in her current motion, perhaps because the late filing was the error of her current counsel. . Although Mohamed alleges ineffective assistance only against her prior counsel, her current counsel has made numerous mistakes in the motions filed before the BIA and in her petition before this court. In addition to the '‘scribner’s'’ mistake in the first motion, and the failure to file a timely appeal discussed in footnote 4 above, Mohamed's current attorney has filed two separate corrections to her brief because of deficiencies. Furthermore, even after the corrections were made, it appears that she failed to attach what she refers to as \"Exhibit A” — evidence of Mohamed's request for a complete decision from the BIA on the first motion. . Specifically, the government sought remand for the BIA to consider: . We note that none of the \"typographical,” \"scribner,” or other errors that complicate our task appear to be the fault of Mohamed herself. As we have previously emphasized, \"[t]he role of an attorney in the deportation process is especially important. For the alien unfamiliar with the laws of our country, an attorney serves a special role in helping the alien through a complex and completely foreign process.” Monjaraz-Munoz v. INS, 327 F.3d 892, 897 (9th Cir.2003). Furthermore, the obligation of counsel is greater where, as here, the client is a minor. See Lin v. Ashcroft, 377 F.3d 1014, 1025 (9th Cir.2004) (\"[C]oncern about[due process] is intensified when the petitioner is a minor.”). . A motion to reconsider does not present new law or facts, but rather challenges determinations of law and fact made by the BIA. 8 C.F.R. § 1003.2(b)(1); see also Iturribarria, 321 F.3d at 895-96; Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc). In contrast, a motion to reopen seeks to present new facts that would entitle the" }, { "docid": "22228604", "title": "", "text": "BIA at least stated that it “recognize[d] the respondent’s significant equities, particularly those related to her United States citizen children who are in no way responsible for their parent’s past conduct.” Arrozal, 159 F.3d at 433. Here, the BIA does not even “waive [sic] aside” the equities. Id. at 434. It makes no mention of the factors favoring petitioners’ motion or the effect of these factors on their United States citizen children. Nor does the BIA consider whether the inability to travel might have affected the couple’s “choice” to “ignore their obligation” to depart. The BIA’s only allusion to the equities involved in petitioners’ case is the statement: “[i]n balancing these [unspecified] factors.” This is a far cry from the detailed consideration of each factor required by the court in Arrozal. Additionally, as in Mohammed, the BIA “gave no indication that it considered ... the significant documentary evidence” provided by the affidavit and the doctor’s note submitted with the motion to reopen. Mohammed, 400 F.3d at 792. Certainly, the BIA did not “take into account” any “humane considerations.” Arrozal, 159 F.3d at 432-33. Instead of evaluating the favorable factors and the evidence, the BIA considered exclusively the petitioners’ failure to depart, even though it assumed that they were eligible for relief. Where, as here, the petitioners are eligible for relief, any misconduct does not change the BIA’s responsibility to weigh all the factors, positive and negative. Arrozal, 159 F.3d at 434 (The “BIA cannot just waive [sic] aside [Arrozales favorable factors merely because she failed to report for deportation.”). The BIA’s failure to identify and evaluate the favorable factors was an abuse of discretion. The government argues that the petition to reopen goes primarily to the merits of the underlying decision. This assertion is surprising, given the completely new evidence of the wife’s potentially life-threatening illness. However, even if this were “a thinly disguised attempt to relitigate the merits,” the BIA would not be excused from explaining its reasoning. Movsisian, 395 F.3d at 1098. For these reasons, we find that the BIA abused its discretion. Thus, we GRANT the petition" }, { "docid": "22657201", "title": "", "text": "of future torture. See 8 C.F.R. § 1208.16(c)(3). Nevertheless, Mohamed might well prevail on this claim as well: The regulations provide that evidence of past torture should be considered in deciding the question of future torture, 8 C.F.R. § 1208.16(c)(3)(i), and they instruct the adjudicator to consider “evidence of gross, flagrant or mass violations of human rights within the country of removal.” See 8 C.F.R. § 1208.16(c)(3)(iii). See also Kamalthas, 251 F.3d at 1282. In light of Mohamed’s past experience with female genital mutilation and the widespread practice of mutilating females in Somalia, the possibility of related harm occurring in the future, and the overall human rights conditions in Somalia, Mohamed may well be able to demonstrate that she is entitled to relief under CAT. Certainly, she has a plausible argument to that effect. Moreover, as in the case of persecution, Mohamed may be entitled to protection under CAT on the ground that genital mutilation is a permanent and continuing harm. That is, to the extent that Mohamed’s past genital mutilation constitutes torture, her ongoing experience may be enough to establish that she is automatically entitled, without more, to protection under CAT. Cf. Qu, 399 F.3d at 1196 (holding petitioner automatically entitled to withholding on the basis of continuing persecution). Therefore, we hold that on remand the agency must consider Mohamed’s CAT claim, along with her asylum and withholding claims. III. CONCLUSION Because Mohamed has demonstrated that she was prejudiced by her attorney’s ineffective assistance, the BIA abused its discretion in denying her motions to reopen and reconsider. We grant her peti tion for review and remand with instructions to grant the motion to reopen. - GRANTED AND REMANDED. . Petitioner’s name is spelled inconsistently throughout her brief, either as \"Mohammed” or \"Mohamed.” Because she wrote her name with a single \"m” in her signed declarations, we will use that spelling. . We note that many courts and the BIA refer to the practice at issue here as FGM. We see no need for using initials rather than the full three word phrase. We are short neither of paper nor" }, { "docid": "22657173", "title": "", "text": "the substance of the motion and attempted to clarify its first opinion. It acknowledged its “typographical errors” and explained that Mohamed “did not demonstrate any prejudice resulting from her prior counsel’s representation such as would affect the outcome of her case and would amount to a due process violation.” Alternatively, the BIA considered the motion as a motion to reconsider and concluded that, “[t]o the extent that the current motion is subject to being construed as a motion to reconsider, we find that it must be denied because [Mohamed] has not demonstrated any substantive error in our [first] decision....” Mohamed petitioned for review of the BIA’s decision denying her second motion. We granted her motion to consolidate review of the two orders denying her motions to reconsider and reopen. Two days before we heard oral argument, the government moved to remand the case so that the BIA could reconsider and clarify its decisions. II. ANALYSIS We have jurisdiction over Mohamed’s petitions for review pursuant to 8 U.S.C. § 1252. We review BIA rulings on motions to reopen and reconsider for abuse of discretion and reverse only if the Board acted arbitrarily, irrationally, or contrary to law. Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002); Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). We review factual findings for substantial evidence. Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.2004). Questions of law, including claims of due process violations due to ineffective assistance, we review de novo. Id. 1) whether [it] should reissue its [first] decision, or take other measures to ensure that the decision sets forth the intended statement of the agency on the petitioner's first motion to reopen, and 2) whether petitioner’s second motion to reopen is barred by the numerical limitation on motions to reopen, in light of any action taken upon remand with regard to the [first] decision. A. Procedural issues As described above, Mohamed’s case is characterized by a series of errors committed by the agency responsible for adjudicating her claim, and by her attorneys. Before considering the question whether Mohamed has demonstrated ineffective assistance" }, { "docid": "22723275", "title": "", "text": "is not our task to search the record for reasons why a decision of the IJ or BIA should be affirmed; rather, the immigration court must adequately link its decision to the record evidence in a reasoned opinion that properly applies the law, id., and “if the IJ’s reasoning proves inadequate for denying a petitioner’s claim, we will not hesitate to reverse,” Secaida-Rosales, 331 F.3d at 305. Ivanishvili asserts on appeal that the IJ erred in rejecting her asylum application as untimely and in denying her requests for statutory withholding of removal and withholding under the CAT. She also contends the IJ erred by not considering the documentary evidence she submitted at her hearing and that the BIA abused its discretion by failing to consider the additional documentary evidence petitioner submitted on appeal. In our view, the IJ’s denial of Ivanishvili’s application for withholding of removal is based on reasoning that, in light of the record, is insufficient for us to permit meaningful review of the decision. We therefore vacate the BIA’s decision insofar as it summarily affirmed the IJ’s denial of petitioner’s application for withholding and remand to the BIA with instructions to vacate that portion of the decision and remand it to the IJ for further proceedings consistent with this opinion. In all other respects, we affirm the IJ’s decision. II Petitioner’s Application for Asylum We turn first to the IJ’s rejection of Ivanishvili’s asylum application. An alien seeking asylum must apply within one year of her .last arrival in the United States or April 1, 1997, whichever is later. See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 208.4(a)(2)(h). Because Ivanishvili arrived in the United States on December 3, 1996, she was entitled to have the one-year limit run from April 1, 1997 and should have filed her asylum application by April 1, 1998. Petitioner’s asylum application was not filed until July 18, 2000, more than two years after the regulatory deadline. The IJ thus rejected the application as untimely. We conclude that petitioner’s claim cannot succeed because she has not complied with the procedural requirements for asserting" }, { "docid": "22744062", "title": "", "text": "824-25 (holding that petitioner was diligent when, after his motion was denied for lack of a filing fee, he discussed the issue with counsel, who promised to remedy the BIA’s mistake); Rodriguez-Lariz, 282 F.3d at 1225 (holding that petitioners did not lack diligence when, after receiving a denial of their appeal to the BIA, they relied on counsel’s advice that filing a motion to reopen would be in their best interests). Therefore, we hold that the BIA did not abuse its discretion when it concluded that Avagyan did not act with due diligence with respect to her claim that Spence and Martinez provided ineffective assistance of counsel in preparing her asylum petition. Avagyan’s motion to reopen was untimely with respect to that claim. 2. Counsel’s Incompetent Advice on Adjustment of Status It is unclear whether the BIA even considered whether Avagyan exercised due diligence with respect to her adjustment of status claim. Though the BIA recognized that Avagyan claimed Spence, Martinez, and Gevorg gave her incorrect advice on adjustment of status, its discussion of Avagyan’s diligence focused almost exclusively on the lapse of time between when Avagyan should have known about the Spence’s deficiencies in preparing her asylum claim for hearing and when she filed a motion to reopen. The BIA abuses its discretion when it denies petitioner’s claim with no indication that it considered all of the evidence and claims presented by the petition. See Mohammed, 400 F.3d at 792. Even if we assume that some of the BIA’s more general statements about Avagyan’s diligence relate to her adjustment of status claim, the BIA’s conclusions are unsupported by the record and contrary to law. The BIA’s conclusion that Avagyan “failed to explain the delay” in seeking present counsel is wholly unsupported by the record. As the BIA recognized, Avagyan declared that, after the removal hearing, she retained Gevorg (whom she believed was an attorney), asked him about whether she could become a United States citizen as Vartanyan’s relative, and worked with him to file a petition for an immediate relative visa. Gevorg told her that she had to wait" }, { "docid": "22657176", "title": "", "text": "however, by denying the motion in an incomplete opinion and in failing to consider all the attached evidence. The BIA’s opinion was nonsensical: It referred to a direct appeal rather than to a motion to reconsider or reopen; the second page began mid-sentence and was unrelated to the first page, making the reasoning difficult to follow; and it stated that the new evidence did likely affect the outcome of Mohamed’s case, even though it went on to deny the motion. Furthermore, the BIA treated the ineffective assistance claim in a cursory fashion and gave no indication that it considered either the significant documentary evidence demonstrating Mohamed’s past genital mutilation or her compliance with Lozada. Not only was the BIA’s opinion an example of sloppy adjudication, it contravened considerable precedent. We have held that the BIA must issue a decision that fully explains the reasons for denying a motion to reopen. See Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004) (“This court has held that the BIA must ‘indicate with specificity that it heard and considered petitioner’s claims.’ ”) (quoting Arrozal v. INS, 159 F.3d 429, 433 (9th Cir.1998)); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002) (holding that the BIA abused its discretion where it “merely repeated petitioners’ claims and summarily dismissed them without even purporting to engage in any substantive analysis or articulating any reasons for its decision.”). Furthermore, the BIA is obligated to consider and address in its entirety the evidence submitted by a petitioner. See Mejia v. Ashcroft, 298 F.3d 873, 879-80 (9th Cir.2002); Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir.2001). Were the first motion and decision the only materials before us, we would be inclined to grant the government’s motion to remand and to order the BIA to “take measures to ensure that its decision sets forth the intended statement of the agency,” as the government requests. See Maravilla Maravilla, 381 F.3d at 858 (remanding for reconsideration because the BIA’s decision was “[s]o far afield of the proper two-pronged analysis ... that it [wa]s unclear whether it actually treated petitioners’ motion" }, { "docid": "22657175", "title": "", "text": "sufficient to warrant reopening, we must address the procedural complications raised by the “woefully inadequate” adjudication and representation below. See Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir.2004). Mohamed’s first motion, which was filed as a motion to reconsider and remand, erroneously stated that Mohamed feared future female genital mutilation. Nonetheless, the attached documents, including Mohamed’s affidavit and the physician’s report, made clear that the claim was based on past persecution, and the motion unambiguously asked the BIA to consider her former counsel’s ineffective assistance in failing to raise the mutilation issue. The BIA properly construed the motion as a motion to reopen. Our case law holds that a motion to reopen — not a motion to reconsider — is the proper “avenue ordinarily available to pursue ineffective assistance of counsel claims.” Iturribarria v. INS, 321 F.3d 889, 896-97 (9th Cir.2003) (instructing the BIA to treat motions based on ineffective assistance of counsel claims as motions to reopen); see also Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.2004). The BIA abused its discretion, however, by denying the motion in an incomplete opinion and in failing to consider all the attached evidence. The BIA’s opinion was nonsensical: It referred to a direct appeal rather than to a motion to reconsider or reopen; the second page began mid-sentence and was unrelated to the first page, making the reasoning difficult to follow; and it stated that the new evidence did likely affect the outcome of Mohamed’s case, even though it went on to deny the motion. Furthermore, the BIA treated the ineffective assistance claim in a cursory fashion and gave no indication that it considered either the significant documentary evidence demonstrating Mohamed’s past genital mutilation or her compliance with Lozada. Not only was the BIA’s opinion an example of sloppy adjudication, it contravened considerable precedent. We have held that the BIA must issue a decision that fully explains the reasons for denying a motion to reopen. See Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004) (“This court has held that the BIA must ‘indicate with specificity that it heard" }, { "docid": "22784754", "title": "", "text": "the BIA cites its decision in Burbano, and does not express disagreement with any part of the IJ’s decision, we review the IJ’s decision as if it were the BIA’s decision. See Cinapian v. Holder, 567 F.3d 1067, 1073(9th Cir.2009). The BIA’s determination that petitioners have not established eligibility for asylum or withholding of removal is reviewed for substantial evidence. See, e.g., Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). Under the substantial evidence standard, the BIA’s determinations will be upheld “if the decision is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir.2008) (quoting Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir. 2005) (en banc)). Reversal, however, is appropriate when “the evidence in the record compels a reasonable factfinder to conclude that the [BIA’s] decision is incorrect.” Id. Purely legal questions, including jurisdictional questions, are reviewed de novo. See Taslimi v. Holder, 590 F.3d 981, 984 (9th Cir.2010). III. ASYLUM To qualify for asylum, an applicant must file her application within one year after arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The limitations period will be tolled if the applicant can establish changed circumstances that materially affect her eligibility for asylum. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4)®. Contrary to the government’s argument, we have jurisdiction to review an agency’s changed circumstances determination. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.2007) (per curiam) (holding that the Real ID Act restored jurisdiction over the “changed circumstances” question because this question involved the application of a statutory standard to undisputed facts). Petitioners argue that Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), and Lolong v. Gonzales, 400 F.3d 1215 (9th Cir.2005) (“Lolong I”), rev’d, 484 F.3d 1173 (9th Cir.2007) (en banc) (“Lolong II”), constituted changed circumstances because they changed United States law in a way that materially affects their eligibility for asylum. 8 C.F.R. § 208.4(a)(4)(i)(B). We review the IJ’s changed circumstances determination for substantial evidence. See Ramadan, 479 F.3d at 657. Petitioners’ argument fails because both Sael" }, { "docid": "19977402", "title": "", "text": "opposed the motion when it was filed, and held that “such opposition would have mandated a denial of the motion under Matter of Velarde.” (emphasis added). It also concluded that Ahmed could not have proven, by clear and convincing evidence, that her marriage was bona fide. Ahmed subsequently petitioned this court for review. STANDARD OF REVIEW This court “review[s] BIA rulings on motions to reopen ... for abuse of discretion and reverse[s] only if the Board acted arbitrarily, irrationally, or contrary to law.” Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). Questions of law, including ineffective assistance of counsel claims, are reviewed de novo. Id. at 791-92. DISCUSSION In removal proceedings, “[i]nef-fective assistance of counsel ... amounts to a violation of due process under the Fifth Amendment if ‘the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.’ ” Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857-58 (9th Cir.2004) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)). “To prevail, the petitioner must demonstrate first that counsel failed to perform with sufficient competence, and, second, that she was prejudiced by counsel’s performance.” Mohammed, 400 F.3d at 793. The government argues only in passing that Getachew and Obayemi provided competent representation. We conclude that their performance was deficient. While an attorney’s representation need not “be brilliant,” it “cannot serve to make [the] immigration hearing so fundamentally unfair that [the alien] was prevented from reasonably presenting his case.” Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004) (internal quotations omitted). In failing to advise Ahmed of the necessary documentation for the motion to reopen “in time for [her] to gather it,” see Iturribarria v. INS, 321 F.3d 889, 900-01 (9th Cir.2003); in submitting the motion to reopen well beyond the deadline; in arguing for an exception to the deadline that clearly did not apply; and in misrepresenting the facts or law to Ahmed about the timeliness of the motion, Getachew and Obayemi prevented Ahmed from reasonably presenting her case. That is surely not competent representation. The government argues more adamantly that, regardless of counsel’s" }, { "docid": "19977401", "title": "", "text": "including: (1) additional photographs; (2) joint bank account statements; (3) letters from friends declaring the marriage to be legitimate; (4) a joint insurance policy; (5) a joint certificate of title to a car; (6) joint phone bills; (7) a statement of joint occupancy of their residence; and (8) the birth certificate of her son, Abihu Kassaye Teba, who was born in 2006. In addition, on June 22, 2006, her 1-130 petition had been approved. Ahmed filed a supplemental declaration stating that although Getachew informed her that “she would need to prove that her marriage was real,” Getachew did not explain how to do so. Getachew asked for a wedding photograph, but never requested any additional proof. According to Ahmed, she would have provided additional evidence if she had been asked. On August 14, 2007, the BIA denied Ahmed’s second motion to reopen. The BIA determined that Ahmed had failed to establish prejudice because Ahmed’s first motion to reopen would have been denied even if it had been timely. The BIA found that the DHS had opposed the motion when it was filed, and held that “such opposition would have mandated a denial of the motion under Matter of Velarde.” (emphasis added). It also concluded that Ahmed could not have proven, by clear and convincing evidence, that her marriage was bona fide. Ahmed subsequently petitioned this court for review. STANDARD OF REVIEW This court “review[s] BIA rulings on motions to reopen ... for abuse of discretion and reverse[s] only if the Board acted arbitrarily, irrationally, or contrary to law.” Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). Questions of law, including ineffective assistance of counsel claims, are reviewed de novo. Id. at 791-92. DISCUSSION In removal proceedings, “[i]nef-fective assistance of counsel ... amounts to a violation of due process under the Fifth Amendment if ‘the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.’ ” Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857-58 (9th Cir.2004) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)). “To prevail, the petitioner must demonstrate first that counsel" }, { "docid": "22657177", "title": "", "text": "and considered petitioner’s claims.’ ”) (quoting Arrozal v. INS, 159 F.3d 429, 433 (9th Cir.1998)); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002) (holding that the BIA abused its discretion where it “merely repeated petitioners’ claims and summarily dismissed them without even purporting to engage in any substantive analysis or articulating any reasons for its decision.”). Furthermore, the BIA is obligated to consider and address in its entirety the evidence submitted by a petitioner. See Mejia v. Ashcroft, 298 F.3d 873, 879-80 (9th Cir.2002); Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir.2001). Were the first motion and decision the only materials before us, we would be inclined to grant the government’s motion to remand and to order the BIA to “take measures to ensure that its decision sets forth the intended statement of the agency,” as the government requests. See Maravilla Maravilla, 381 F.3d at 858 (remanding for reconsideration because the BIA’s decision was “[s]o far afield of the proper two-pronged analysis ... that it [wa]s unclear whether it actually treated petitioners’ motion as an ineffective assistance of counsel claim.”). In this case, however, the BIA has already had a second opportunity to address the claim and has done so. 'Mohamed filed a second motion in which she made it clear that her ineffective assistance claim was based on her past genital mutilation. Although the motion was improperly titled a motion to reopen, its purpose was to ask the BIA to reconsider its previous decision, and to make the BIA aware that it might have overlooked evidence in the record. In response to this motion, the BIA issued an opinion in which it acknowledged the “typographical” mistakes in its prior opinion, and explained that it had found that Mohamed failed to demonstrate prejudice as the result of any ineffective representation. In the alternative, it considered the second motion .as a motion to'reconsider, and denied it on the basis that its initial decision was correct. As cliché-lovers are wont to say, the BIA has already had two “bites at the apple,” see Eminence Capital, LLC v. Aspeon, Inc., 316" }, { "docid": "22770995", "title": "", "text": "before the IJ and in her motion to reopen, and she does not allege that her counsel’s performance was deficient at either of those stages of the proceedings. Under these circumstances, reconsideration of the merits of Zheng’s claim of ineffective assistance of counsel is not warranted. Finally, with respect to Zheng’s contention that the BIA abused its discretion in refusing to consider (1) her brief and (2) the corroborating affidavits she submitted in support of her motion to reopen, the BIA’s decision does not suggest that the appellate brief was not considered, but only that the BIA found Zheng’s motion insufficient insofar as it did not comply with Lozada’s requirements. In its decision denying Zheng’s motion, moreover, the BIA correctly stated that a motion to reopen “is not to be used as ... a second effort at proving factual allegations.” And while it is true, as petitioner notes, that an alien is invited “to submit previously unavailable evidence in support of one’s claim” in a motion to reopen, the regulations unequivocally provide that such evidence will only be considered if it (1) is material, (2) was not previously available, and (3) could not have been discovered or presented at the initial hearing. See Johnson v. Ashcroft, 378 F.3d 164, 170 (2d Cir.2004) (citing 8 C.F.R. § 1003.2(c)(1)). Because Zheng made no effort to demonstrate that the affidavits and additional documentary evidence she submitted in support of her motion to reopen met these requirements, the BIA was not obligated to consider them. CONCLUSION Accordingly, we hold that the BIA did not abuse its discretion in rejecting petitioner’s ineffective assistance of counsel claim on the ground that petitioner failed to comply with the requirements set forth in Lozada, see note 1 ante. The petition for review is therefore denied. . In Lozada, the BIA stated that a motion to reopen or reconsider based upon a claim of ineffective assistance of counsel ''[1] should be supported by an affidavit of the allegedly aggrieved respondent attesting to the relevant facts .... Furthermore, [2] ... former counsel must be informed of the allegations and allowed" } ]

[ { "docid": "4833980", "title": "", "text": "that the jury followed the initial instruction, United States v. Walker, 657 F.3d 160, 171 (3d Cir.2011), we conclude that the District Court committed no error in instructing the jury on Count Seven. IV. Finally, we address the legality of the sentence imposed by the District Court. The Government noted in its brief that the District Court erred in imposing a “general sentence” on Counts One through Six, instead of specifying an individual sentence for each offense. Andrews did not properly raise this issue in his opening brief, and ordinarily “an appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005) (citations omitted). However, the waiver rule yields in “extraordinary circumstances.” United States v. Albertson, 645 F.3d 191, 195 (3d Cir.2011). In determining whether a case presents “extraordinary circumstances,” we consider three factors: (1) “whether there is some excuse for the [appellant’s] failure to raise the issue in the opening brief’; (2) the extent to which the opposing party would be prejudiced by our considering the issue; and (3) “whether failure to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system.” Id. (quoting In re Kane, 254 F.3d 325, 331 (1st Cir.2001)). The miscarriage of justice factor is “somewhat similar to the 'plain error’ rule,” which allows appellate courts to correct an error not raised before the district court if the error affected the defendant’s substantial rights and “seriously affected] the fairness, integrity or public reputation of judicial proceedings.” Id. at 196 (quoting Gambino v. Morris, 134 F.3d 156, 169 n. 12 (3d Cir.1998) (Roth, J., concurring), and United States v. Knight, 266 F.3d 203, 207 (3d Cir.2001)). Applying these factors to Andrews’s case, we believe “the balance weighs in favor of reviewing the merits” of the general sentence issue. Id. at 195. With respect to the first factor, Andrews has provided no compelling reason for his failure to raise the issue in his opening brief. Thus, the first factor weighs in favor" } ]

[ { "docid": "22701704", "title": "", "text": "original complaint. Accordingly, the prison officials argue that we should dismiss Grant’s appeal for failure to comply with Rule 28(a) of the Federal Rules of Appellate Procedure. Although we liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than to parties represented by counsel, pro se parties must still brief the issues and reasonably comply with the standards of Rule 28. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (“[P]ro se litigants, like all other parties, must abide by the Federal Rules of Appellate. Procedure.”); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993) (“ ‘[Arguments must: be briefed to be preserved.’ ” (quoting Price, 846 F.2d at 1028)). The prison officials argue that Grant has abandoned his appeal by failing to brief any issues. This Court has considered a pro se appellant’s brief despite its technical noncompliance with the Rules of Civil Procedure when it at least argued some error on the part of the district court. See, e.g., Wilkes, 20 F.3d at 653 (considering issue even after criticizing brief for failing to cite to the record for argument that his sentence was improper because “the superseding information failed to specify the type and quantity of drug he possessed”); Price, 846 F.2d at 1028 (addressing issue even though the “only reference appellant makes to the district court’s dismissal of his lawsuit is to assert that ‘this action is not time barred’ ”); Amin, 706 F.2d at 640 n. 1 (considering brief because it “contains an assertion of trial court error”). But see Yohey, 985 F.2d at 224 (holding that plaintiff had abandoned issues because he merely “request[ed] ... the adoption of previously filed legal and factual arguments in his objections to the magistrate judge’s report and in various state court pleadings”). In this case, Grant fails to meet even this minimal requirement. Aside from the implication raised by its existence, his brief does not argue that the district court erred in any way. This Court has discretion to consider a noncompliant brief, and it has allowed pro se" }, { "docid": "1434438", "title": "", "text": "testimony about the guilty pleas and verdicts resulting from Lawson’s cooperation with the Government. Counsel also challenged the District Court’s failure to strike Lawson’s references to “Jimmy X Turner” and the “criminal recordfs]” in his “dossier.” In addition to these two arguments, Turner’s counsel raised nine issues “in the style of an Anders brief,” explaining why they considered those issues frivolous. Taking his cue from counsel’s brief, Turner filed a pro se document requesting that his counsel withdraw and advancing entirely new arguments on the merits. Because Turner styled this document as a “supplement to be attached to the brief filed [by counsel],” we construed it as a motion for leave to file a supplemental brief. Two weeks later, Turner’s counsel filed a separate “Motion for Leave for the Appellant to File a Pro Se Supplemental Brief.” In doing so, counsel acknowledged that Third Circuit Local Appellate Rule 31.3 prohibits represented parties from filing pro se briefs, but they noted that the Rule also allows counsel “in the unusual case [to] file a motion to file a supplemental brief, if appropriate.” 3d Cir. L.A.R. 31.3. Counsel conceded that this case was not governed by Anders because they had not sought to withdraw from their representation of Turner. Nevertheless, counsel urged the Court to accept a supplemental brief from Turner because their “quasiAnders ” brief rendered this an “unusual case” under Local Appellate Rule 31.3. A motions panel of this Court entered an order referring both Turner’s and his counsel’s motions to the merits panel. The Government filed a motion for reconsideration of that order, arguing that it contravened Local Appellate Rule 31.3 because it required the Government to respond to the litany of issues raised in both counsel’s “quasi-Anders brief’ and Turner’s pro se motion. According to the Government, Turner was improperly seeking “hybrid representation” and “should [have been] compelled to determine ... whether he [was] represented by counsel or wishe[d] to proceed pro se.” Because we had not yet ruled on whether Turner could file a supplemental brief pro se, Turner and his counsel responded to the Government’s motion" }, { "docid": "23126931", "title": "", "text": "of plea hearing that no one had made any promises or guarantees about his sentence, and he acknowledged that counsel’s predictions relating to sentencing could be wrong. Mr. Viera failed to show he suffered prejudice as a result of his attorney’s representations regarding his potential sentence. We have held that an erroneous sentencing prediction is not prejudicial where the court has conducted an adequate Rule 11 colloquy. See United States v. Hamilton, 510 F.3d 1209, 1216 (10th Cir.2007). We agree with the district court’s thorough analysis of why Mr. Viera was not prejudiced by the alleged conduct of his attorney. We therefore deny the application for a COA on this issue. Mr. Viera’s other requests for COA concern issues raised for the first time in Mr. Viera’s reply brief to this court. “We generally avoid entertaining arguments for reversing a district court’s judgment that were not adequately developed by a petitioner in his opening brief.” Prost v. Anderson, 636 F.3d 578, 594 (10th Cir.2011). Furthermore, as to issues that were not presented to the district court, we adhere to our general rule against considering issues for the first time on appeal. See McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir.2002) (“[Aft-sent extraordinary circumstances, [this court] will not consider arguments raised for the first time on appeal. This is true whether an appellant is attempting to raise a bald-faced new issue or a new theory that falls under the same general category as [a previous] argument....” (quotations and citation omitted)). III. CONCLUSION For the foregoing reasons, the district court’s denial of habeas relief is affirmed, and Mr. Viera’s application for a COA is denied. . Because Mr. Viera proceeds pro se, we liberally construe his filing but \"do not assume the role of advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir.2008) (quotations omitted). . Although we do not rely on our unpublished orders, we note that several have held that counsel's failure to file an appeal falls within the scope of a plea agreement waiver. See, e.g., United States v. Falcon-Sanchez, 416 Fed.Appx. 728, 730" }, { "docid": "4833984", "title": "", "text": "4(b)(2), we treat the notice of appeal as filed on the date that the District Court entered its judgment. In April 2011, Andrews filed a motion for release pending appeal, in which he argued that his appeal raised several substantial questions of law, likely to result in reversal of his conviction, a new trial, a noncustodial sentence, or a shorter term of imprisonment. On September 6, 2011, the District Court denied his motion. United States v. Andrews, No. 04-38-2, 2011 WL 3903229, at *5 (D.Vi. Sept. 6, 2011). .The Government noted in its brief that the District Court erred in imposing a “general sentence” of 151 months’ imprisonment on Counts One through Six. Andrews did not properly raise this issue in his opening brief, and ordinarily we would consider it waived. United States v. Albertson, 645 F.3d 191, 195 (3d Cir.2011); see Fed. R.App. P. 28(a)(5); Third Circuit L.A.P. 28.1(a)(1). However, because we believe that this case presents \"extraordinary circumstances,” we will consider the legality of the sentence imposed by the District Court. See Albertson, 645 F.3d at 195. . The Government argues that Andrews waived his right to challenge the jury instructions on appeal because his attorney objected to the initial instruction and persuaded the District Court to provide a clarifying instruction. Under the \"invited error” doctrine, where a defendant makes a request in favor of certain instructions, he waives the right to complain of error in such instructions on appeal. United States v. Ozcelik, 527 F.3d 88, 97 n. 6 (3d Cir.2008); United States v. Console, 13 F.3d 641, 660 (3d Cir.1993). However, we have previously held that \"[w]here a defendant submits proposed jury instructions in reliance on current law” and while his case is on direct appeal, the law is found to be constitutionally problematic, we will not apply the \"invited error” doctrine. United States v. West Indies Transp., Inc., 127 F.3d 299, 305 (3d Cir.1997). Instead, we review for plain error. Id. This is consistent with the Supreme Court's definition of waiver as the \"intentional relinquishment or abandonment of a known right.” United States v. Olano," }, { "docid": "1434440", "title": "", "text": "independently. First, Turner filed a motion purporting to “counterattack” the Government’s motion, as well as requesting “hybrid representation by both counsel and defendant” because there were “issues of merit that [they stood] divided on.” Next, counsel filed their own response to the Government’s motion, reiterating that this qualified as an “unusual case” under Local Appellate Rule 31.3. Counsel added that they had filed a “quasi-Anders ” brief “to satisfy [their] dual obligations to the defendant and to this Court ... to make any arguments they could in good faith on the defendant’s behalf [while addressing] arguments that the client insisted be made, despite [their] advice.” The motions panel denied the Government’s motion for reconsideration. Consequently, the Government filed a merits brief that addressed the two non-frivolous issues in counsel’s “quasi-Alders ” brief but insisted that pro se briefs by counseled parties violate our local rules. Turner’s counsel filed a reply brief, contending that Local Appellate Rule 31.3 was ambiguous and could be read to permit counsel “in the unusual case [to] file a motion to file a supplemental brief [authored by the pro se defendant].” The case was calendared, and oral argument was scheduled. The case took yet another twist, however, when we granted Turner’s and counsel’s long-pending initial motions, which had requested leave for Turner to file a pro se supplemental brief. Turner seized on this opportunity to file yet another brief, which he conceded did not “quote[ ] any case law, states [sic], or rules” but which nevertheless raised four additional issues. Justifiably perplexed, the Government responded to Turner’s third and final pro se filing, beginning with the understatement that “[t]his appeal has followed a most unusual course.” The Government also expressed confusion because it believed that Turner already had submitted a supplemental pro se brief as part of his first motion to this Court. The Government therefore was “unclear whether the opportunity to file a pro se supplemental brief [in the Court’s latest order] referred to a new brief, or a reply brief to the government’s brief.” Finally, the Government once again argued that the Court should" }, { "docid": "4833983", "title": "", "text": "184 (citing U.S.S.G. § 5G1.2(b)). Here, although the 151-month term of imprisonment was within the statutory maximum for Counts Two through Five, it exceeded the statutory maximum for Counts One and Six, and due to the general nature of the sentence, we cannot determine whether the sentence was legal as to . each count. See id. Therefore, we will vacate Andrews’s sentence on Counts One through Six, and remand for the limited purpose of allowing the District Court to clarify the sentence imposed on each count of conviction. V. For the foregoing reasons, we will affirm the District Court’s judgment of conviction, vacate the judgment of sentence on Counts One through Six, and remand to the District Court for resentencing. . It is not clear from the record why nearly five years passed between Andrews's conviction and the imposition of his sentence. . Andrews first filed his notice of appeal on January 26, 2011, but the District Court did not enter a written judgment until March 3, 2011. Pursuant to Federal Rule of Appellate Procedure 4(b)(2), we treat the notice of appeal as filed on the date that the District Court entered its judgment. In April 2011, Andrews filed a motion for release pending appeal, in which he argued that his appeal raised several substantial questions of law, likely to result in reversal of his conviction, a new trial, a noncustodial sentence, or a shorter term of imprisonment. On September 6, 2011, the District Court denied his motion. United States v. Andrews, No. 04-38-2, 2011 WL 3903229, at *5 (D.Vi. Sept. 6, 2011). .The Government noted in its brief that the District Court erred in imposing a “general sentence” of 151 months’ imprisonment on Counts One through Six. Andrews did not properly raise this issue in his opening brief, and ordinarily we would consider it waived. United States v. Albertson, 645 F.3d 191, 195 (3d Cir.2011); see Fed. R.App. P. 28(a)(5); Third Circuit L.A.P. 28.1(a)(1). However, because we believe that this case presents \"extraordinary circumstances,” we will consider the legality of the sentence imposed by the District Court. See Albertson," }, { "docid": "23403197", "title": "", "text": "default caused by counsel’s failure to raise the Batson claim on direct appeal. The lone witness at the federal hearing was Holloway’s counsel on direct appeal, who testified that although he could recall no discussion on the Batson claim at oral argument, the Pennsylvania Supreme Court indicated that it would take all issues presented under advisement, including those presented in the pro se supplemental brief. See App. Vol. IV at 625-26 ([T]he Court said it would consider all the matters contained in the pleadings set forth and the Batson issue was one of them.); id. at 626 ([T]he Court even noted the fact that it would consider the Batson issue or at least his pro se brief.); id. at 642 ([T]he Court had duly noted that it had received the pro se brief, was taking it under advisement, taking all the matters raised under advisement after oral argument.). The Commonwealth, for its part, presented no evidence at the federal hearing to rebut or cast any doubt upon counsel’s recollection that the state court accepted the pro se supplemental brief for consideration. On this record, Holloway has met his burden of showing that he exhausted the Batson claim on direct appeal, as he placed the state court on notice of the factual and legal substance of his federal equal protection argument and raised the claim through the established system for review. Cf. Buehl v. Vaughn, 166 F.3d 163, 176 n. 8 (3d Cir.1999) (noting in a capital case that counseled petitioner exhausted claims by presenting them in a pro se brief to the Pennsylvania Supreme Court). The Commonwealth argues that we cannot rely on the testimony of Holloway’s direct appeal counsel because the District Court lacked authority under 28 U.S.C. § 2254(e)(2) to hold an evidentiary hearing. Appellees Br. at 55-57. This Court has held, however, that it is within a District Court’s authority to grant a hearing on a petitioner’s ability to establish cause to excuse a procedural default, and therefore § 2254(e)(2) is inapplicable to those hearings. Cristin v. Brennan, 281 F.3d 404, 412-13 (3d Cir.), cert. denied, 537" }, { "docid": "23508987", "title": "", "text": "to him to challenge his conditions prior to our analysis in that case. According to the Government, however, Albertson’s failure to challenge the conditions of his supervised release in his opening brief waived the argument. It urged us to strike the reply brief or, at least, consider the argument waived. Rather than strike the reply, we granted the Government’s request to file a surreply. It is standard practice that an appellant must state all issues raised on appeal in the opening brief. See Fed. R.App. P. 28(a)(5); Third Cir. Local App. R. 28.1(a)(1). Indeed, it is essential to our review that the appellant properly present all issues in his opening brief. “It is well settled that an appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005); see, e.g., In re Surrick, 338 F.3d 224, 237 (3d Cir.2003); see also Inst, for Scientific Info., Inc. v. Gordon & Breach, Sci. Pubis., Inc., 931 F.2d 1002, 1011 (3d Cir.1991) (finding waiver because “[n]owhere in the ‘Statement of the Issues Presented’ or the ‘Argument’ section of plaintiffs appellate brief are [the district court’s] conclusions questioned”). For these reasons, “we usually refrain from addressing an argument or issue not properly raised and discussed in the appellate briefing.” Forestal Guarani S.A. v. Daros Int’l, Inc., 613 F.3d 395, 403 (3d Cir.2010) (Cowen, J., dissenting). However, the rule does yield in “extraordinary circumstances.” See Simmons v. City of Phila., 947 F.2d 1042, 1065 (3d Cir.1991). Though our case law repeats the rule — waiver absent extraordinary circumstances — we have yet to flesh out the extraordinary circumstance exception. We find instructive an approach set out by one of our sister courts of appeals. In In re Kane, the First Circuit Court of Appeals acknowledged, as we do, that it lacked explicit standards for “what constitutes such extraordinary circumstances.” 254 F.3d 325, 331 (1st Cir.2001). It did, however, identify certain factors as “obvious” ones to consider: “whether there is some excuse for the 'failure to raise the" }, { "docid": "23508989", "title": "", "text": "issue in the opening brief; how far the opposing party would be prejudiced; and whether failing to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system.” Id. We agree and adopt these principles. Applied to the facts of Albertson’s case, we believe the balance weighs in favor of reviewing the merits of the challenge to his supervised release conditions. With respect to the first factor, we appreciate that Albertson’s reason for failing to raise the issue in his opening brief is not compelling. As noted, his counsel stated at argument that, prior to Miller, he had not realized that a challenge to the conditions might succeed. This might be true as a subjective matter. Objectively, however, the basis for Miller already existed in a line of cases, discussed below, concerning computer-related conditions of supervised release that were imposed on child porn offenders. Thus, standing alone, the first factor does not cut against waiver. However, the second two factors do weigh against waiver. The Government would suffer no prejudice in this case. Not only was it permitted to file a surreply, but it then failed to pursue meaningfully its waiver argument in the sur-reply. This indicates that it would not be prejudiced significantly by our review of the merits. Lastly, the miscarriage of justice factor is “somewhat similar to the ‘plain error’ rule, which is applied in the context of appeals from criminal trials, and allows appellate courts to consider defects at the trial level even when the defendant has failed to lodge an appropriate objection.” Gambino v. Morris, 134 F.3d 156, 169 n. 12 (3d Cir.1998) (Roth, J., concurring) (citing Fed.R.Crim.P. 52(b)). In other words, we may consider an issue, despite the fact that it was improperly raised on appeal, if the District Court plainly erred in such a way as to affect the appellant’s substantial rights. See Fed.R.Crim.P. 52(b); United States v. Thielemann, 575 F.3d 265, 270 n. 9 (3d Cir.2009) (citing United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “[E]ven where plain error" }, { "docid": "1434450", "title": "", "text": "(3d Cir.2008) (citation and internal quotation marks omitted); see also Ruggero J. Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility — A View from the Jaundiced Eye of One Appellate Judge, 11 Cap. U.L.Rev. 445, 458 (1982) (“Appellate advocacy is measured by effectiveness, not loquaciousness.”). “[T]o second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every ‘colorable’ claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders.” Jones, 463 U.S. at 754, 103 S.Ct. 3308. B In addition to vetting frivolous issues in their “quasi-Anders brief,” counsel invite us to consider Turner’s pro se filings, which also present frivolous issues, because this is an “unusual case.” We reject that invitation because our local rules preclude us from considering Turner’s pro se arguments while he is represented by counsel. Accordingly, the order filed December 1, 2011 is hereby vacated. Pro se litigants have no right to “hybrid representation” because “[a] defendant does not have a constitutional right to choreograph special appearances by counsel.” McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). “Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously ... requests] that ... counsel be silenced.” Id. Even absent our longstanding prohibition on “hybrid representation,” we still could not consider Turner’s pro se filings because we are bound by our local rules, which state: Except in eases in which counsel has filed a motion under L.A.R. 109.2 to withdraw under Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967), parties represented by counsel may not file a brief pro se. If a party sends a pro se brief to the court, the clerk will forward the brief to the party’s attorney of record, with notice to the pro se party. Counsel may choose to include the arguments in his or her brief or may in the unusual case file a motion" }, { "docid": "1434452", "title": "", "text": "to file a supplemental brief, if appropriate. 3d Cir. L.A.R. 31.3. Consistent with this rule, we have stated repeatedly in not precedential opinions that we consider pro se briefs only in situations governed by Anders. See, e.g., United States v. McCoy, 272 Fed.Appx. 212, 215 (3d Cir.2008); United States v. Reyes, 271 Fed.Appx. 217, 218 (3d Cir.2008); United States v. Awala, 260 Fed.Appx. 469, 471-72 (3d Cir.2008); United States v. Lott, 240 Fed.Appx. 992, 995 (3d Cir.2007). Although in the past we considered counseled parties’ pro se filings in “unusual circumstances,” see United States v. Salerno, 61 F.3d 214, 218 n. 2 (3d Cir.1995); United States v. Essig, 10 F.3d 968, 969 (3d Cir.1994), Local Appellate Rule 31.3 should have abrogated that practice when it became effective in 2002. Counsel for Turner argue that Local Appellate Rule 31.3 is ambiguous. In their view, “[c]ounsel may choose to include the arguments [of the pro se defendant] in his or her brief or may in the unusual case file a motion to file a supplemental brief [authored by the pro se defendant], if appropriate.” Counsel correctly imply that Rule 31.3 does not specify who, in the “unusual case,” may be permitted to file a supplemental brief. The rule can be read, as counsel suggests, to permit the filing of pro se briefs by counseled defendants in “unusual” and “appropriate” cases. But the rule also can be read, as the Government suggests, to require all supplemental briefs to be filed by counsel. We find the Government’s interpretation to be the more natural reading of Rule 31.3. The Rule states that “[cjounsel ... may ... file a motion to file a supplemental brief.” 3d Cir. L.A.R. 31.3 (emphasis added). There is no mention of represented parties in this sentence. The beginning of Rule 31.3, which does mention pro se filings, states that they will be forwarded to counsel rather than submitted to the Court. Id. Moreover, allowing represented parties to file pro se supplemental briefs would contradict the first sentence of Rule 31.3, which states: “[e]xcept in [Anders cases], parties represented by counsel may" }, { "docid": "23508988", "title": "", "text": "(3d Cir.1991) (finding waiver because “[n]owhere in the ‘Statement of the Issues Presented’ or the ‘Argument’ section of plaintiffs appellate brief are [the district court’s] conclusions questioned”). For these reasons, “we usually refrain from addressing an argument or issue not properly raised and discussed in the appellate briefing.” Forestal Guarani S.A. v. Daros Int’l, Inc., 613 F.3d 395, 403 (3d Cir.2010) (Cowen, J., dissenting). However, the rule does yield in “extraordinary circumstances.” See Simmons v. City of Phila., 947 F.2d 1042, 1065 (3d Cir.1991). Though our case law repeats the rule — waiver absent extraordinary circumstances — we have yet to flesh out the extraordinary circumstance exception. We find instructive an approach set out by one of our sister courts of appeals. In In re Kane, the First Circuit Court of Appeals acknowledged, as we do, that it lacked explicit standards for “what constitutes such extraordinary circumstances.” 254 F.3d 325, 331 (1st Cir.2001). It did, however, identify certain factors as “obvious” ones to consider: “whether there is some excuse for the 'failure to raise the issue in the opening brief; how far the opposing party would be prejudiced; and whether failing to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system.” Id. We agree and adopt these principles. Applied to the facts of Albertson’s case, we believe the balance weighs in favor of reviewing the merits of the challenge to his supervised release conditions. With respect to the first factor, we appreciate that Albertson’s reason for failing to raise the issue in his opening brief is not compelling. As noted, his counsel stated at argument that, prior to Miller, he had not realized that a challenge to the conditions might succeed. This might be true as a subjective matter. Objectively, however, the basis for Miller already existed in a line of cases, discussed below, concerning computer-related conditions of supervised release that were imposed on child porn offenders. Thus, standing alone, the first factor does not cut against waiver. However, the second two factors do weigh against waiver. The Government would suffer no" }, { "docid": "1434439", "title": "", "text": "file a supplemental brief, if appropriate.” 3d Cir. L.A.R. 31.3. Counsel conceded that this case was not governed by Anders because they had not sought to withdraw from their representation of Turner. Nevertheless, counsel urged the Court to accept a supplemental brief from Turner because their “quasiAnders ” brief rendered this an “unusual case” under Local Appellate Rule 31.3. A motions panel of this Court entered an order referring both Turner’s and his counsel’s motions to the merits panel. The Government filed a motion for reconsideration of that order, arguing that it contravened Local Appellate Rule 31.3 because it required the Government to respond to the litany of issues raised in both counsel’s “quasi-Anders brief’ and Turner’s pro se motion. According to the Government, Turner was improperly seeking “hybrid representation” and “should [have been] compelled to determine ... whether he [was] represented by counsel or wishe[d] to proceed pro se.” Because we had not yet ruled on whether Turner could file a supplemental brief pro se, Turner and his counsel responded to the Government’s motion independently. First, Turner filed a motion purporting to “counterattack” the Government’s motion, as well as requesting “hybrid representation by both counsel and defendant” because there were “issues of merit that [they stood] divided on.” Next, counsel filed their own response to the Government’s motion, reiterating that this qualified as an “unusual case” under Local Appellate Rule 31.3. Counsel added that they had filed a “quasi-Anders ” brief “to satisfy [their] dual obligations to the defendant and to this Court ... to make any arguments they could in good faith on the defendant’s behalf [while addressing] arguments that the client insisted be made, despite [their] advice.” The motions panel denied the Government’s motion for reconsideration. Consequently, the Government filed a merits brief that addressed the two non-frivolous issues in counsel’s “quasi-Alders ” brief but insisted that pro se briefs by counseled parties violate our local rules. Turner’s counsel filed a reply brief, contending that Local Appellate Rule 31.3 was ambiguous and could be read to permit counsel “in the unusual case [to] file a motion to" }, { "docid": "1434453", "title": "", "text": "by the pro se defendant], if appropriate.” Counsel correctly imply that Rule 31.3 does not specify who, in the “unusual case,” may be permitted to file a supplemental brief. The rule can be read, as counsel suggests, to permit the filing of pro se briefs by counseled defendants in “unusual” and “appropriate” cases. But the rule also can be read, as the Government suggests, to require all supplemental briefs to be filed by counsel. We find the Government’s interpretation to be the more natural reading of Rule 31.3. The Rule states that “[cjounsel ... may ... file a motion to file a supplemental brief.” 3d Cir. L.A.R. 31.3 (emphasis added). There is no mention of represented parties in this sentence. The beginning of Rule 31.3, which does mention pro se filings, states that they will be forwarded to counsel rather than submitted to the Court. Id. Moreover, allowing represented parties to file pro se supplemental briefs would contradict the first sentence of Rule 31.3, which states: “[e]xcept in [Anders cases], parties represented by counsel may not file a brief pro se.” Id. By requiring that briefs be filed only by counsel, we ensure that counsel and client speak with one voice. When a client seeks to raise additional issues, counsel must evaluate them and present only the meritorious ones, rather than simply seeking leave for the client to file a supplemental brief. This promotes effective advocacy because it prevents counsel from allowing frivolous arguments to be made by the client. See Jones, 463 U.S. at 751-53, 103 S.Ct. 3308. We also note that the convoluted procedural history in this case illustrates well the hazards of reading Rule 31.3 as Turner’s counsel suggest. If represented parties could file pro se briefs, their adversaries would have to respond on two distinct fronts. Apart from the procedural morass that would follow such “hybrid” advocacy (as occurred in this case), our attention would be diverted from potentially meritorious arguments. In light of the foregoing, we now hold that, except in eases governed by Anders, parties represented by counsel may not file pro se briefs." }, { "docid": "1434441", "title": "", "text": "file a supplemental brief [authored by the pro se defendant].” The case was calendared, and oral argument was scheduled. The case took yet another twist, however, when we granted Turner’s and counsel’s long-pending initial motions, which had requested leave for Turner to file a pro se supplemental brief. Turner seized on this opportunity to file yet another brief, which he conceded did not “quote[ ] any case law, states [sic], or rules” but which nevertheless raised four additional issues. Justifiably perplexed, the Government responded to Turner’s third and final pro se filing, beginning with the understatement that “[t]his appeal has followed a most unusual course.” The Government also expressed confusion because it believed that Turner already had submitted a supplemental pro se brief as part of his first motion to this Court. The Government therefore was “unclear whether the opportunity to file a pro se supplemental brief [in the Court’s latest order] referred to a new brief, or a reply brief to the government’s brief.” Finally, the Government once again argued that the Court should not consider Turner’s pro se arguments while he was represented by counsel, but “for the benefit of the Court” the Government responded to “the latest four in the apparently endless[ ] series of pro se issues presented by Turner.” II Turner concedes that we review the two colorable issues raised by his appellate counsel for plain error because they were not raised at trial. See Fed.R.Crim.P. 52(b). “To find plain error, we must conclude that (1) there was error; (2) the error was clear or obvious; (3) the error affected the defendant’s substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of the legal proceeding.” United States v. Tyson, 653 F.3d 192, 211 (3d Cir.2011) (citing United States v. Lee, 612 F.3d 170, 178 (3d Cir.2010)). “If the defendant satisfies this showing, we may, but are not required to, order correction.” Id. (citing United States v. Olano, 507 U.S. 725, 735-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Ill Having described the convoluted procedural history of this case and the" }, { "docid": "1434454", "title": "", "text": "not file a brief pro se.” Id. By requiring that briefs be filed only by counsel, we ensure that counsel and client speak with one voice. When a client seeks to raise additional issues, counsel must evaluate them and present only the meritorious ones, rather than simply seeking leave for the client to file a supplemental brief. This promotes effective advocacy because it prevents counsel from allowing frivolous arguments to be made by the client. See Jones, 463 U.S. at 751-53, 103 S.Ct. 3308. We also note that the convoluted procedural history in this case illustrates well the hazards of reading Rule 31.3 as Turner’s counsel suggest. If represented parties could file pro se briefs, their adversaries would have to respond on two distinct fronts. Apart from the procedural morass that would follow such “hybrid” advocacy (as occurred in this case), our attention would be diverted from potentially meritorious arguments. In light of the foregoing, we now hold that, except in eases governed by Anders, parties represented by counsel may not file pro se briefs. When such briefs are filed nonetheless, the Clerk will refer them to the putative pro se litigant’s counsel. At that point, counsel may (1) include the client’s pro se arguments in their own briefs or (2) in the appropriate and unusual case, seek leave to file a separate, supplemental brief drafted by counsel that advances arguments raised by the client. Of course, such briefs should make only those arguments counsel believe, consistent with their ethical duty, to be meritorious. V For the reasons stated, we will affirm Turner’s conviction. . The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. Our jurisdiction lies under 28 U.S.C. § 1291. . Because we agree with counsel that these issues are frivolous, we do not address them here. . We caution that a motion to discharge appellate counsel after counsel has filed a brief is likely to be denied. See Martinez v. Court of Appeal of Cal., 528 U.S. 152, 163, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (no right to self-representation on appeal). ." }, { "docid": "1434449", "title": "", "text": "not, and should not, raise every ... claim but rather may select among them in order to maximize the likelihood of success on appeal.” Showers v. Beard, 635 F.3d 625, 634 (3d Cir.2011) (citing Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)). Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.... A brief that raises every colorable issue runs the risk of burying good arguments — those that ... “go for the jugular” — in a verbal mound made up of strong and weak contentions. Jones, 463 U.S. at 751-53, 103 S.Ct. 3308. “Indeed, an appellate lawyer’s exercise of professional judgment in omitting weaker claims is obviously of benefit to the client: the more claims an appellate brief contains, the more difficult for an appellate judge to avoid suspecting that there is no merit to any of them.” Johnson v. Tennis, 549 F.3d 296, 302 (3d Cir.2008) (citation and internal quotation marks omitted); see also Ruggero J. Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility — A View from the Jaundiced Eye of One Appellate Judge, 11 Cap. U.L.Rev. 445, 458 (1982) (“Appellate advocacy is measured by effectiveness, not loquaciousness.”). “[T]o second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every ‘colorable’ claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders.” Jones, 463 U.S. at 754, 103 S.Ct. 3308. B In addition to vetting frivolous issues in their “quasi-Anders brief,” counsel invite us to consider Turner’s pro se filings, which also present frivolous issues, because this is an “unusual case.” We reject that invitation because our local rules preclude us from considering Turner’s pro se arguments while he is represented by counsel. Accordingly, the order filed December 1, 2011 is hereby vacated. Pro se litigants have no right to “hybrid representation” because “[a] defendant does not have a constitutional right to choreograph special appearances by counsel.”" }, { "docid": "1434451", "title": "", "text": "McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). “Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously ... requests] that ... counsel be silenced.” Id. Even absent our longstanding prohibition on “hybrid representation,” we still could not consider Turner’s pro se filings because we are bound by our local rules, which state: Except in eases in which counsel has filed a motion under L.A.R. 109.2 to withdraw under Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967), parties represented by counsel may not file a brief pro se. If a party sends a pro se brief to the court, the clerk will forward the brief to the party’s attorney of record, with notice to the pro se party. Counsel may choose to include the arguments in his or her brief or may in the unusual case file a motion to file a supplemental brief, if appropriate. 3d Cir. L.A.R. 31.3. Consistent with this rule, we have stated repeatedly in not precedential opinions that we consider pro se briefs only in situations governed by Anders. See, e.g., United States v. McCoy, 272 Fed.Appx. 212, 215 (3d Cir.2008); United States v. Reyes, 271 Fed.Appx. 217, 218 (3d Cir.2008); United States v. Awala, 260 Fed.Appx. 469, 471-72 (3d Cir.2008); United States v. Lott, 240 Fed.Appx. 992, 995 (3d Cir.2007). Although in the past we considered counseled parties’ pro se filings in “unusual circumstances,” see United States v. Salerno, 61 F.3d 214, 218 n. 2 (3d Cir.1995); United States v. Essig, 10 F.3d 968, 969 (3d Cir.1994), Local Appellate Rule 31.3 should have abrogated that practice when it became effective in 2002. Counsel for Turner argue that Local Appellate Rule 31.3 is ambiguous. In their view, “[c]ounsel may choose to include the arguments [of the pro se defendant] in his or her brief or may in the unusual case file a motion to file a supplemental brief [authored" }, { "docid": "4833981", "title": "", "text": "the opposing party would be prejudiced by our considering the issue; and (3) “whether failure to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system.” Id. (quoting In re Kane, 254 F.3d 325, 331 (1st Cir.2001)). The miscarriage of justice factor is “somewhat similar to the 'plain error’ rule,” which allows appellate courts to correct an error not raised before the district court if the error affected the defendant’s substantial rights and “seriously affected] the fairness, integrity or public reputation of judicial proceedings.” Id. at 196 (quoting Gambino v. Morris, 134 F.3d 156, 169 n. 12 (3d Cir.1998) (Roth, J., concurring), and United States v. Knight, 266 F.3d 203, 207 (3d Cir.2001)). Applying these factors to Andrews’s case, we believe “the balance weighs in favor of reviewing the merits” of the general sentence issue. Id. at 195. With respect to the first factor, Andrews has provided no compelling reason for his failure to raise the issue in his opening brief. Thus, the first factor weighs in favor of waiver. However, the second and third factors weigh heavily against waiver. As to the second factor, it is clear that the Government would suffer no prejudice as a result of our considering the issue because the Government expressly concedes in its brief that remand for “clarification of the sentence” on Counts One through Six is appropriate. Finally, as to the miscarriage of justice factor, we have held, in the context of plain error review, that a general sentence error under the Sentencing Guidelines affects a defendant’s “substantial rights and result[s] in manifest injustice because, as a result of the general nature of the sentence, neither we nor [the defendant] can determine whether it was legal as to particular counts.” United States v. Ward, 626 F.3d 179, 184 (3d Cir.2010) (citation omitted). Turning to the merits, we hold that the District Court erred in imposing a general sentence of 151 months’ imprisonment on Counts One through Six. Under the Sentencing Guidelines, a district court must impose a sentence on each count. Ward, 626 F.3d at" }, { "docid": "23403198", "title": "", "text": "pro se supplemental brief for consideration. On this record, Holloway has met his burden of showing that he exhausted the Batson claim on direct appeal, as he placed the state court on notice of the factual and legal substance of his federal equal protection argument and raised the claim through the established system for review. Cf. Buehl v. Vaughn, 166 F.3d 163, 176 n. 8 (3d Cir.1999) (noting in a capital case that counseled petitioner exhausted claims by presenting them in a pro se brief to the Pennsylvania Supreme Court). The Commonwealth argues that we cannot rely on the testimony of Holloway’s direct appeal counsel because the District Court lacked authority under 28 U.S.C. § 2254(e)(2) to hold an evidentiary hearing. Appellees Br. at 55-57. This Court has held, however, that it is within a District Court’s authority to grant a hearing on a petitioner’s ability to establish cause to excuse a procedural default, and therefore § 2254(e)(2) is inapplicable to those hearings. Cristin v. Brennan, 281 F.3d 404, 412-13 (3d Cir.), cert. denied, 537 U.S. 897, 123 S.Ct. 195, 154 L.Ed.2d 166 (2002). Appellate counsel’s testimony regarding the direct appeal proceedings fell within the scope of the evidentiary hearing, which was conducted to determine whether there was any objective factor external to the defense that prevented counsel from pressing the Batson claim in the counseled direct appeal brief. Thus, the evidence adduced at the hearing is properly considered for purposes of the exhaustion analysis. Our conclusion that Holloway exhausted the Batson elaim by means of his pro se brief is fully supported by the Pennsylvania Supreme Court’s practice, at the time of Holloway’s appeal, of considering issues raised pro se even if counseled briefs were filed. In a capital case decided while Holloway’s direct appeal was pending, Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), the Pennsylvania Supreme Court noted that appellate counsel neglected to raise an issue concerning the trial court’s failure to render an appropriate jury instruction. The appellant himself, however, raised a challenge on that basis in a pro se supplemental brief. Id. at" } ]

[ { "docid": "22720854", "title": "", "text": "excluded under § 541(c)(2) because the plans lack transfer restrictions enforceable under “applicable nonbank-ruptcy law,” that interest nevertheless could be exempted under § 522(d)(10)(E). Once petitioner concedes that § 522(d)(10)(E)’s exemption applies to more than ERISA-qualified plans containing antialienation provisions, see Tr. of Oral Arg. 10-11; Brief for Petitioner 31, his argument that our reading-of § 541(c)(2) renders the exemption provision superfluous must collapse. C Finally, petitioner contends that our holding frustrates the Bankruptcy Code’s policy of ensuring a broad inclusion of assets in the bankruptcy estate. See id., at 37; 11 U. S. C. § 541(a)(1) (estate composed of “all legal or equitable interests of the debtor in property as of the commencement of the case”). As an initial matter, we think that petitioner mistakes an admittedly broad definition of includable property for a “policy” underlying the Code as a whole. In any event, to the extent that policy considerations are even relevant where the language of the statute is so clear, we believe that our construction of § 541(c)(2) is preferable to the one petitioner urges upon us. First, our decision today ensures that the treatment of pension benefits will not vary based on the beneficiary’s bankruptcy status. See Butner v. United States, 440 U. S. 48, 55 (1979) (observing that “[u]niform treatment of property interests” prevents “a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy,’ ” quoting Lewis v. Manufacturers National Bank, 364 U. S. 603, 609 (1961)). We previously have declined to recognize any exceptions to ERISA’s antialienation provision outside the bankruptcy context. See Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U. S. 365 (1990) (labor union may not impose constructive trust on pension benefits of union official who breached fiduciary duties and embezzled funds). Declining to recognize any exceptions to that provision within the bankruptcy context minimizes the possibility that creditors will engage in strategic manipulation of the bankruptcy laws in order to gain access to otherwise inaccessible funds. See Seiden, Chapter 7 Cases: Do ERISA and the Bankruptcy Code Conflict as to Whether a Debtor’s Interest in" } ]

[ { "docid": "15427390", "title": "", "text": "whether a security interest in property extends to rents and profits derived from the property — should be resolved by reference to state law. Recognizing that “Congress has generally left the determination of property rights in the assets of a bankrupt’s estate to state law,” id. at 54, 99 S.Ct. at 918, the Court refused to adopt a federal rule of equity affording a mortgagee an automatic security interest in the rents even if state law would not recognize any such interest until after foreclosure, id. at 53-54, 99 S.Ct. at 917-18. In doing so, the Court clarified the relationship between state property laws and the equity powers of the bankruptcy court. As the Court explained: Property interests are created and defined by state law. 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. Uniform treatment of property interests by both state and federal courts within a State serves to reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving a “windfall merely by reason of the happenstance of bankruptcy.” Id. at 55, 99 S.Ct. at 918 (quoting Lewis v. Manufacturers Nat’l Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1960)); see also In re Waldron, 65 B.R. 169, 170 (Bankr.N.D.Tex.1986). In Butner, therefore, the Supreme Court stressed that federal bankruptcy law should not be used to work a substantive change in the ordering of property interests under state law. The appellees argue that allowing the Committee to maintain this action effectively creates a new cause of action on the part of creditors, thereby working a substantive change in property interests under Louisiana law. We reject that proposition and conclude that Butner in no way forbids the committee from maintaining this action in lieu of a trustee or the debtor-in-possession. Here, it is clear that LWE’s cause of action against its officers and directors for gross negligence, mismanagement and breach of fiduciary duty arises under Louisiana law. The named plaintiff, LWE, is" }, { "docid": "10168537", "title": "", "text": "secured creditor to go unprotected “simply because an interested party is involved in a bankruptcy proceeding.” See Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 136 (1979). The Court in But-ner observed that “[ujniform treatment of property interests by both state and federal courts within a State serves ... to prevent a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ ” 440 U.S. at 55, 99 S.Ct. at 918 (quoting Lewis v. Manufacturers National Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961)). To the extent that the debtor in bankruptcy can prevent the secured creditor from enforcing its rights against collateral while the debtor benefits from the creditor’s money, the debtor and his unsecured creditors receive a windfall at the expense of the secured creditor. We conclude that sections 361 and 362(d) were drafted to preclude such a windfall and to insure that the secured creditor receives the benefit of its bargain. We are satisfied that our holding in this case will not inhibit successful reorganization but rather will promote among other things the ready availability of affordable credit. I respectfully DISSENT. . This case verges on presenting a hypothetical controversy to the court, because Timbers’ present cash flow is tens of thousands of dollars less than monthly debt service payments and the likelihood that Timbers will be able to reorganize is virtually nil. This was conceded by debtor’s counsel in oral argument. As no fact finding was made on that issue below, and the parties being intent on achieving a definitive resolution of the adequate protection issue, I reluctantly conclude that the case should be decided by our court. It is indeed unfortunate, however, that nothing turns on the outcome of our decision in this case for these parties. . In re Briggs Transportation Company, 780 F.2d 1339 (8th Cir. 1985); Grundy National Bank v. Tandem Mining Corp., 759 F.2d 1436 (4th Cir. 1985); In re American Mariner Industries, Inc., 734 F.2d 426 (9th Cir.1984). . The majority erroneously limit the scope of" }, { "docid": "13623730", "title": "", "text": "which, under applicable state law, the creditor would likely have been able to enforce those rights. Neither the district court nor the bankruptcy court purported to exercise its discretion under that section. The district court properly held that “the unenforced interest in rents constitutes cash collateral.” 136 B.R. at 55. Therefore, as the district court recognized, “§ 363(c)(2) prohibits the Debtor’s use of those assets without the Secured Creditors’ consent or court authorization. Nor may such authorization be granted once the Secured Creditors have requested protection absent a finding that their interests are adequately protected. Section 363(e).” Id. We agree with the district court and conclude that the rents were properly classified as cash collateral from the date of the commencement of the bankruptcy case. The district court then addressed “from what date [the Banks] are entitled to the rental proceeds.” Id. The district court noted that the Banks had not taken the steps necessary to enforce their security interests in the rents prior to bankruptcy and that the automatic stay of section 362 prohibited those enforcement steps after the commencement of the bankruptcy case. Id. The district court held, however, that “the [Banks’] Motion for Sequestration served as an appropriate ‘enforcement-surrogate,’ and that the [Banks] are entitled to the rents from the date they filed that motion.” Id. It is unclear exactly what the district court meant in stating that the Banks were “entitled” to the rents from the date of the sequestration motion. If the district court meant that the rents were only cash collateral from the date of the motion, we disagree. As we have stated above, the rents satisfy the definition of cash collateral regardless of the present enforceability of the security interest in those rents. Thus, they were cash collateral from the outset of bankruptcy. Alternatively, the district court’s reference to the Banks’ “entitlement” to the rents may refer to a right on the part of the Banks to collect directly the rents from the date of the sequestration motion. We also disagree with this proposition. As the district court noted, under Virginia law a" }, { "docid": "18510012", "title": "", "text": "or lease soft collateral in the early stages of a reorganization. The protection of the secured creditor is left entirely to the judge. The debtor is usually able to obtain an ex parte order authorizing use, sale, or lease of property quickly, the secured creditor then has an uphill battle to have it overturned. The result has often been a serious erosion in secured creditors’ rights because soft collateral is often easily dissipated or perishable. The [new] provisions governing the right of the trustee or debtor in possession to use, sell, or lease soft collateral also require that the secured creditor’s interest be adequately protected. This is protection that secured creditors do not have today. The bill as written is a significant boon to secured lenders. H.R.Rep. No. 598, 95th Cong., 1st Sess. 182-88 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 6412, 6413 (emphasis added). Consistent with our holding, it is apparent that the cash collateral provisions were designed with the protection of secured creditors’ interests in mind. Effect of a Finding of Cash Collateral Status. Having come to the conclusion that the unenforced interest in rents constitutes cash collateral, we recognize that § 368(c)(2) prohibits the Debtor’s use of those assets without the Secured Creditors’ consent or court authorization. Nor may such authorization be granted once the Secured Creditors have requested protection absent a finding that their interests are adequately protected. Section 363(e). The sole remaining questions with respect to the cash collateral issue are whether the Secured Creditors sought protection through an appropriate motion and from what date they are entitled to the rental proceeds. The proper starting point for both of these inquiries is Butner v. United States. Butner’s salient holding is that a bankruptcy court construing an assignment of rents provision should take steps to ensure that “the mortgagee is afforded in federal bankruptcy court the same protection he would have under state law if no bankruptcy had ensued.” 440 U.S. at 56, 99 S.Ct. at 918. That approach is necessary to prevent the parties — whether the secured creditor or the debtor —" }, { "docid": "13623729", "title": "", "text": "generally McCafferty, The Assignment of Rents in the Crucible of Bankruptcy, 94 Com.L.J. 433 (1989). An inquiry into the present enforceability of a security interest in rents might be relevant to an exercise of the court’s equitable discretion under the final clause of section 552(b). That clause provides that the interest in rents continues to exist after bankruptcy “except to any extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise.” 11 U.S.C. § 552(b). There is a longstanding bankruptcy policy of preventing “a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ ” Butner, 440 U.S. at 55, 99 S.Ct. at 918 (quoting Lewis v. Manufacturers Nat’l Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961)); accord Patterson v. Shumate, — U.S.-,-, 112 S.Ct. 2242, 2249, 119 L.Ed.2d 519 (1992). In keeping with this policy, the court might well exercise its equitable powers to strip a creditor of rights to post-petition rents prior to the point at which, under applicable state law, the creditor would likely have been able to enforce those rights. Neither the district court nor the bankruptcy court purported to exercise its discretion under that section. The district court properly held that “the unenforced interest in rents constitutes cash collateral.” 136 B.R. at 55. Therefore, as the district court recognized, “§ 363(c)(2) prohibits the Debtor’s use of those assets without the Secured Creditors’ consent or court authorization. Nor may such authorization be granted once the Secured Creditors have requested protection absent a finding that their interests are adequately protected. Section 363(e).” Id. We agree with the district court and conclude that the rents were properly classified as cash collateral from the date of the commencement of the bankruptcy case. The district court then addressed “from what date [the Banks] are entitled to the rental proceeds.” Id. The district court noted that the Banks had not taken the steps necessary to enforce their security interests in the rents prior to bankruptcy and that the automatic stay of section 362 prohibited" }, { "docid": "18626549", "title": "", "text": "security interest in the subject rental income. See Butner v. United States, 440 U.S. 48, 55-57, 99 S.Ct. 914, 918-19, 59 L.Ed.2d 136 (1979). VBF does not ground its security interest on the assignment of interest in leases. It concedes that such an assignment of rental income made conditional upon the future default of the mortgagor was void and unenforceable during the time period relevant to this case. See Hart v. Bingman, 171 Okla. 429, 43 P.2d 447, 449 (1935) (holding mortgage clauses which attempt to pledge rents to be void and unenforceable because they are contrary to public policy). VBF’s claim to the rental income stems from the existence of the mortgage itself. This court, in reliance upon the language of the state statute governing the appointment of a receiver, Okla.Stat. § 518(2) (1921) (predecessor provision to identical Okla.Stat. tit. 12, § 1551(2)(1981)) (since amended, effective Nov. 1, 1989), stated “[t]he statute recognizes the mortgage as creating an equitable lien on the rents pending foreclosure.” Little v. Keaton, 38 F.2d 457, 461 (10th Cir.), cert. denied, 282 U.S. 847, 51 S.Ct. 26, 75 L.Ed. 751 (1930). This equitable lien arising from the mortgage and security agreement constitutes the security interest under § 552(b) that causes the rental income to be categorized as cash collateral under § 363(a). Section 552(b) qualifies the continuing (postpetition) force of a prepetition security interest by noting the overarching control of other code sections, including 11 U.S.C. § 544. Section 544(a) provides that, upon the commencement of a bankruptcy case, a trustee (or, as in the instant case, a debtor-in-possession, see 11 U.S.C. § 1107(a)) has the rights and powers of both a hypothetical judicial lien creditor and a bona fide purchaser to avoid any transfer of the debtor’s property if the conveyed interest was not perfected prepetition. State law controls the issue of whether a property interest has been perfected. See Butner, 440 U.S. at 55, 99 S.Ct. at 918. Oklahoma is a lien theory state. See Hart, 48 P.2d at 449. Thus, the mortgagor remains the legal owner of the mortgaged property. See" }, { "docid": "4773209", "title": "", "text": "Butner v. United States, 440 U.S. at 55, 99 S.Ct. at 918 (quoting Lewis v. Manufacturers Nat’l. Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961), that a party should not receive a “windfall merely by the reason of the happenstance of bankruptcy.” Id. A majority of courts follow the 5th Circuit, but this and other recent decisions conclude that Congress did not intend Section 546(b) as a vehicle for post-petition perfection of a security interest in rents. Its primary purpose “is to protect, in spite of the surprise intervention of a bankruptcy petition, those whom state law protects by allowing them to perfect their liens or interests as of an effective date that is earlier than the date of perfection.” HR Rep. No. 95-595, 95th Cong., 1st Sess. 371 (1977); S Rep. No. 95-989, 95th Cong., 2d Sess. 86 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5787, 5872, 6327. Congress contemplated that the statute would further the objectives of the Uniform Commercial Code, which allows a security interest perfected within ten days to enjoy priority over a security interest that was given later but perfected sooner. Id.; see UCC Section 9-301(2). Accord, In re Association Center, supra; In re Prichard Plaza Associates Limited Partnership, 84 B.R. 289 (Mass.1988). Contra, In re Gelwicks, 81 B.R. 445 (N.D.1987); In re Morning Star Ranch Resorts, 64 B.R. 818 (Co.1986); In re Sampson, 57 B.R. 304 (Tenn.1986); In re Fluge, 57 B.R. 451 (N.D.N.D.1985). Moreover, recordation of the lender’s contracted for interest in the rents imparts notice to anyone who may give value for the rents that there is or may be a senior claimant. Even the Trustee in bankruptcy has notice of such claimant, and should not therefore take as a purchaser under Section 544, which is a prerequisite to application of Section 546(b). This court holds that 546(b) does not apply to perfection of a rentals assignment. Nevertheless, in defining the impact of post-petition implementation of a lender’s interest in rents, the 5th Circuit in Casbeer significantly noted that such implementation cannot impact prior rents, because" }, { "docid": "17232777", "title": "", "text": "appreciate the care taken in this analysis, we conclude that South Village and Alyucan accord insufficient weight to the language of the statute and the con gressional goal of affording the secured creditor the benefit of its bargain. VII. Conclusions The secured creditor’s right to take possession of and sell collateral on the debtor’s default has substantial, measurable value. The secured creditor bargains for this right when it agrees to extend credit to the debt- or and both parties consider the right part of the creditor’s bargain. The right constitutes an “interest in property” that is “created and defined by state law,” and we are aware of no federal interest that requires this right of the secured creditor to go unprotected “simply because an interested party is involved in a bankruptcy proceeding.” See Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 917-918, 59 L.Ed.2d 136 (1979). The Court in Butner observed that “[u]niform treatment of property interests by both state and federal courts within a State serves ... to prevent a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ ” 440 U.S. at 55, 99 S.Ct. at 918 (quoting Lewis v. Manufacturers National Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961)). To the extent that the debtor in bankruptcy can prevent the secured creditor from enforcing its rights against collateral while the debtor benefits from the creditor’s money, the debtor and his unsecured creditors receive a windfall at the expense of the secured creditor. We conclude that sections 361 and 362(d) were drafted to preclude such a windfall and to insure that the secured creditor receives the benefit of its bargain. We are satisfied that our holding in this case will not inhibit successful reorganization but rather will promote among other things the ready availability of affordable credit. We hold that Crocker National Bank is entitled to compensation for the delay in enforcing its rights during the interim between the petition and confirmation of the plan. Crocker contended that such compensation should take the form of monthly" }, { "docid": "18725978", "title": "", "text": "uncertainty, to discourage forum shopping, and to prevent a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ Id. 440 U.S. at 55, 99 S.Ct. at 918, 59 L.Ed.2d at 141-42, (1979) (citing, Lewis v. Manufactures National Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323, 327 (1961)). Reference to State law, to the extent of the absence of controlling Federal law, will also define the nature of a debtor’s interest as well as the extent of the bankruptcy estate’s interest in property. Robinson v. U.S. Small Business Administration (In re Catamount Dyers, Inc.), 50 B.R. 788, 789 (Bkrtcy.D.Vt.1985). Similarly, a creditor’s property rights are also defined by State law. Kors, Inc. v. Howard Bank, 819 F.2d 19, 22, 16 B.C.D. 162, 164 (2d Cir.1987); Purcell v. STN Enterprises, Inc. (In re STN Enterprises, Inc.), 47 B.R. 315, 318 (Bkrtcy.D.Vt.1985). Where Congress has acted, however, (see e.g., 11 U.S.C. §§ 547, 548), this Court’s equitable and Federal powers will supersede conflicting State law to properly administer and enforce the provisions of the bankruptcy laws. What claims of creditors are valid and subsisting obligations against the bankrupt at the time a petition in bankruptcy is filed is a question which, in the absence of overruling federal law, is to be determined by reference to state law. In determining what claims are allowable and how a debtor’s assets shall be distributed, a bankruptcy court does not apply the law of the state where it sits_ But bankruptcy courts must administer and enforce the Bankruptcy Act as interpreted by this Court in accordance with authority granted by Congress to determine how and what claims shall be allowed under equitable principles. Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 161-62, 67 S.Ct. 237, 239, 91 L.Ed. 162, 165-66 (1946) (citations and footnotes omitted). See also, Butner v. United States, supra, 440 U.S. at 55, n. 10, 99 S.Ct. at 918, n. 10, 59 L.Ed.2d at 142, n. 10 (1979) (dicta, Federal statutory basis for voiding preferential and fraudulent transfers as examples where Federal law modifies State" }, { "docid": "13623728", "title": "", "text": "and contractual conditions precedent. While the conditions precedent might not have occurred as of filing [for bankruptcy] regarding the ... rents, that does not change the fact that the post-petition rents are subject to the [creditor]^ security interest and become its cash collateral under 11 U.S.C. § 363. It is true that the automatic stay prevents the [creditor] from undertaking steps to enforce its rights in the cash collateral. However, it is equally true that the Debtor is prohibited from using the same cash collateral without first obtaining an order allowing the use pursuant to 11 U.S.C. § 363. In re Pavilion Place Associates, 89 B.R. 36, 39 (Bkrtcy.D.Minn.1988) (applying Minnesota law regarding the creation of a security interest in rents); see also New York Life Insurance Co. v. Bremer Towers, 714 F.Supp. 414, 418 (D.Minn.1989) (“The fact that a creditor did not enforce that perfected interest prior to bankruptcy does not invalidate the interest, it merely stays the enforcement of that interest pending the bankruptcy court’s determination of the party’s entitlement to it.”). See generally McCafferty, The Assignment of Rents in the Crucible of Bankruptcy, 94 Com.L.J. 433 (1989). An inquiry into the present enforceability of a security interest in rents might be relevant to an exercise of the court’s equitable discretion under the final clause of section 552(b). That clause provides that the interest in rents continues to exist after bankruptcy “except to any extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise.” 11 U.S.C. § 552(b). There is a longstanding bankruptcy policy of preventing “a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ ” Butner, 440 U.S. at 55, 99 S.Ct. at 918 (quoting Lewis v. Manufacturers Nat’l Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961)); accord Patterson v. Shumate, — U.S.-,-, 112 S.Ct. 2242, 2249, 119 L.Ed.2d 519 (1992). In keeping with this policy, the court might well exercise its equitable powers to strip a creditor of rights to post-petition rents prior to the point at" }, { "docid": "18510013", "title": "", "text": "Cash Collateral Status. Having come to the conclusion that the unenforced interest in rents constitutes cash collateral, we recognize that § 368(c)(2) prohibits the Debtor’s use of those assets without the Secured Creditors’ consent or court authorization. Nor may such authorization be granted once the Secured Creditors have requested protection absent a finding that their interests are adequately protected. Section 363(e). The sole remaining questions with respect to the cash collateral issue are whether the Secured Creditors sought protection through an appropriate motion and from what date they are entitled to the rental proceeds. The proper starting point for both of these inquiries is Butner v. United States. Butner’s salient holding is that a bankruptcy court construing an assignment of rents provision should take steps to ensure that “the mortgagee is afforded in federal bankruptcy court the same protection he would have under state law if no bankruptcy had ensued.” 440 U.S. at 56, 99 S.Ct. at 918. That approach is necessary to prevent the parties — whether the secured creditor or the debtor — from “receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ ” Id. at 55, 99 S.Ct. at 918 (citation omitted). The Secured Creditors argue that their Motion for Sequestration of the rents as cash collateral was an appropriate method of enforcing their interest in the rents post-petition and that they are entitled to the rents from the date of the Debtor’s default, whenever we determine that to have occurred. The Debtor argues that the Secured Creditors should have enforced their interest in the rents by first seeking relief from the stay pursuant to § 362(d) and then, assuming the relief was granted, by obtaining possession of the property. See Transcript at 44-45. Taking our guidance from Butner, we conclude that neither the Secured Creditors’ nor the Debtor’s position is entirely correct. Considering the Debtor’s proposal first, we reject the contention that the Secured Creditors should be forced to demonstrate their entitlement to relief from the stay, which requires a showing that their security interest is inadequately protected or that the debtor has no" }, { "docid": "18510009", "title": "", "text": "as one potential form of cash collateral, however, only those rents “subject to a security in terest” within the meaning of § 552(b) qualify. Section 552(b) provides: ... [I]f the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to ... rents ... of such property, then such security interest extends to such ... rents ... acquired by the estate after the commencement of the case to the extent provided by such security agreement and by applicable non-bankruptcy law, except to any extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise. Section 552(b) (emphasis added). Whether a security interest survives the bankruptcy, therefore, is also ascertained by reference to state law. A determination that assets constitute cash collateral is significant because it restricts the Debtor’s use thereof unless the entity holding an interest in the assets consents or the court authorizes their use after notice and a hearing. Section 363(c)(2). Having carefully reviewed the language of the cash collateral provisions, the numerous bankruptcy court decisions that have grappled with the issue, and our prior analysis of Virginia law, we conclude that the rental proceeds are cash collateral entitled to those special protections. As discussed above, the Secured Creditors held a perfected security interest in the rents from the moment they recorded the Deeds of Trust containing the Assignment of Rents. Upon the Debtor's default, Virginia law required the Secured Creditors to gain possession of the property before they could realize their rights to the rental proceeds. We find, in keeping with one of the most persuasive bankruptcy decisions on the issue, that the mere existence of that enforcement hurdle “does not preclude the lienholder’s having rights under state law which ... rise to the level of a ‘security interest’ in the rents sufficient to render the rents cash collateral.” Dash Point, 121 B.R. at 859. Having already determined that the" }, { "docid": "18497198", "title": "", "text": "already permitted that right under New Jersey law. Outside bankruptcy, N.J.S.A. 25:2-l(b) shields any funds in an IRA from the claims of creditors. Debtors in New Jersey are thus already permitted to place assets beyond the reach of creditors by placing them in self-settled trusts. A debtor transferring assets to IRAs for the sole purpose of utilizing N.J.S.A. 25:2-l(b) remains subject to the good faith requirements of the Bankruptcy Code. To that extent, the Bankruptcy Code provides creditors greater protection from abuse than they receive under state law. This concern was squarely addressed by the Third Circuit in Velis v. Kardanis, 949 F.2d 78, 82 (3d Cir.1991), which stated “[presumably, substantial or unusual contributions to self-settled trusts made within the preference period or with intent to defraud creditors should receive no protection under either § 541(e)(2) or § 522(d)(10)(E).” Moreover, The United States Supreme Court has consistently held that while federal law defines “property of the estate,” bankruptcy courts must look to state law for the definition of property and what constitutes an interest in property. See, Butner v. U.S., 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1978); Barnhill v. Johnson, 503 U.S. 393, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992). The concern driving this deference to state law is the idea that the treatment of property interests should be uniform inside and outside of bankruptcy, thus preventing “a party from ‘receiving a windfall merely by reason of the happenstance of bankruptcy.’ ” Butner, 440 U.S. at 55, 99 S.Ct. at 918, quoting Lewis v. Manufacturers National Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961). If this court were to hold that a creditor could reach an IRA of a debtor in bankruptcy that it would not be entitled to reach under state law, creditors might be encouraged to file involuntary petitions against individuals for the sole purpose of obtaining access to funds unavailable under state law. This most undesirable possibility is precisely the type of result the Butner holding seeks to avoid. Finally, the Third Circuit has recognized the depth of Congressional" }, { "docid": "17232778", "title": "", "text": "from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ ” 440 U.S. at 55, 99 S.Ct. at 918 (quoting Lewis v. Manufacturers National Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961)). To the extent that the debtor in bankruptcy can prevent the secured creditor from enforcing its rights against collateral while the debtor benefits from the creditor’s money, the debtor and his unsecured creditors receive a windfall at the expense of the secured creditor. We conclude that sections 361 and 362(d) were drafted to preclude such a windfall and to insure that the secured creditor receives the benefit of its bargain. We are satisfied that our holding in this case will not inhibit successful reorganization but rather will promote among other things the ready availability of affordable credit. We hold that Crocker National Bank is entitled to compensation for the delay in enforcing its rights during the interim between the petition and confirmation of the plan. Crocker contended that such compensation should take the form of monthly interest payments at the market rate on the liquidation value of the collateral. We agree that this is one method of providing adequate protection but by no means the only method available to the debtor. Consistent with the policies behind sections 361 and 362, the debtor should be permitted maximum flexibility in structuring a proposal for adequate protection. The result, however, should as nearly as possible under the circumstances of the case provide the creditor with the value of his bargained for rights. REMANDED for further findings by the bankruptcy court consistent with this opinion. . The bankruptcy court ordered American Mariner to pay Crocker $1,770 each month to protect against possible depreciation of the collateral. If it is later determined that the payments exceeded depreciation, the excess is to be applied to the principal of Crocker’s allowed claim. The court arrived at the $1,770 figure by taking judicial notice that 18%, then the current prime interest rate, on $110,000, the collateral’s Iiquidation value, yielded monthly payments of $1,770. . Judge Hughes dissented and in" }, { "docid": "14782958", "title": "", "text": "or debtor is or has been a debtor under this title ... 11 U.S.C. § 525(a). Robinson’s claim that her lease termination was a product of discrimination against her as a debtor in bankruptcy has no merit. In order for CHA to have discriminated against Robinson because of her bankruptcy status, it must have been aware of that status. Robinson did not file in bankruptcy until the day a writ of possession was scheduled to issue. CHA had completed the lease termination process long before this, and thus its actions could not have been motivated by Robinson’s bankruptcy. III. Conclusion For these reasons, we hold that Robinson’s lease has ended under Illinois law and is not assumable under 11 U.S.C. § 365(a). We therefore affirm the judgment of the district court. . Looking to state law to determine a party’s property interest is derived from the principle stated in Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979) (holding that \"[p]roperty interests are created and defined by state law”). In Butner the Supreme Court reasoned that there is no reason to treat property interests differently for bankruptcy purposes than state law normally dictates. The Court pointed out that using the same standards results in consistency, discourages forum shopping, and prevents parties from receiving “a windfall merely by reason of the happenstance of bankruptcy.” Id. (quoting Lewis v. Manufacturers National Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961)) (applying the principle to a mortgagee’s right to receive rents during bankruptcy). . Some jurisdictions have found that if the lease may still be saved under anti-forfeiture laws, then the lease will not be considered expired for purposes of bankruptcy assumption. See Ross, 142 B.R. 1013. For instance, Florida anti-forfeiture laws give courts the power to grant relief against forfeiture \"whenever it is just and equitable to do so ...” as long as the tenant tenders the arrears of rent with accrued interest. Id. at 1015. Unlike Florida, Illinois does not have a similar anti-forfeiture law awarding such great discretion to" }, { "docid": "18626556", "title": "", "text": "serves as the federal bankruptcy equivalent of the appointment or recognition of a receiver under Oklahoma law. VBF is entitled to the rental income from the subject property from that time forward. Furthermore, as the Fifth Circuit observed in Casbeer, 793 F.2d at 1443, this result comports with the direction in Butner that state law should be applied in determining the exact extent of a mortgagee’s interest in rental income. This uniform application of state and federal law in this regard prevents “a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ ” Butner, 440 U.S. at 55, 99 S.Ct. at 918 quoting Lewis v. Manufacturers Nat’l Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961). The judgment of the United States District Court for the Northern District of Oklahoma entered on February 19, 1988, is AFFIRMED. . For the purposes of this opinion, we subsume within the term “debtors” appellant unsecured creditors committee — a party of like interest to the Woods. . Cash collateral is defined in 11 U.S.C. § 363(a) as follows: In this section, “cash collateral\" means cash, negotiable instruments, documents of title, securities, deposit accounts, or other cash equivalents whenever acquired in which the estate and an entity other than the estate have an interest and includes the proceeds, products, offspring, rents, or profits of property subject to a security interest as provided in section 552(b) of this title, whether existing before or after the commencement of a case under this title. . 11 U.S.C. § 552(b) reads as follows: Except as provided in sections 363, 506(c), 522, 544, 545, 547, and 548 of this title, if the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to proceeds, product, offspring, rents, or profits of such property, then such security interest extends to such proceeds, product, offspring, rents, or profits acquired by the estate after the commencement" }, { "docid": "18725977", "title": "", "text": "doctrines, are they causes of action under Vermont law? 3. If allowed under Vermont law, are the actions of marshaling and alter ego property of the Estate? 4. If the doctrine of marshaling applies, does the conduct of Debtor’s sole shareholder require the application of equitable subordination, 11 U.S.C. § 510(c) to prevent his guaranty from assuming the position of the marshaled senior creditor? DISCUSSION I. Introduction A. Federal and State Law Courts have generally held that in the absence of a Congressionally expressed exercise the substantive nature of a creditor’s property rights in bankruptcy is defined by reference to state law. Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 136, 141-42 (1979): Property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interest should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding. Uniform treatment of property interests by both State and federal courts within a state serves to reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ Id. 440 U.S. at 55, 99 S.Ct. at 918, 59 L.Ed.2d at 141-42, (1979) (citing, Lewis v. Manufactures National Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323, 327 (1961)). Reference to State law, to the extent of the absence of controlling Federal law, will also define the nature of a debtor’s interest as well as the extent of the bankruptcy estate’s interest in property. Robinson v. U.S. Small Business Administration (In re Catamount Dyers, Inc.), 50 B.R. 788, 789 (Bkrtcy.D.Vt.1985). Similarly, a creditor’s property rights are also defined by State law. Kors, Inc. v. Howard Bank, 819 F.2d 19, 22, 16 B.C.D. 162, 164 (2d Cir.1987); Purcell v. STN Enterprises, Inc. (In re STN Enterprises, Inc.), 47 B.R. 315, 318 (Bkrtcy.D.Vt.1985). Where Congress has acted, however, (see e.g., 11 U.S.C. §§ 547, 548), this Court’s equitable and Federal powers will supersede conflicting State law to properly administer and enforce" }, { "docid": "18626555", "title": "", "text": "the mortgage was executed. An equitable lien is a mere floating equity until a judgment or decree subjecting the property to the payment of a debt or claim is rendered, but even though not judicially recognized until a judgment declaring its existence, it relates back to the time it was created by the conduct of the parties. 51 Am.Jur.2d Liens § 22 (1970). See also In re Stratton, 106 B.R. 188, 193 (Bankr.E.D.Cal.1989); Matter of Adametz, 53 B.R. 299, 307 (Bankr.W.D.Wis.1985); United States through Farmers Home Admin, v. Redland, 695 P.2d 1031, 1040 (Wyo.1985). Accord Leyden v. Citicorp Indus. Bank, 782 P.2d 6, 11 n. 10 (Colo.1989). Although the perfection of VBF’s interest in the rents relates back to the time of the execution of the mortgage for the purpose of § 546(b), the entitlement to the rental income does not relate back. Under Oklahoma law, a mortgagee is not entitled to recover the rental income prior to the appointment or recognition of a receiver. See Hart, 43 P.2d at 451. VBF’s § 546(b) notice serves as the federal bankruptcy equivalent of the appointment or recognition of a receiver under Oklahoma law. VBF is entitled to the rental income from the subject property from that time forward. Furthermore, as the Fifth Circuit observed in Casbeer, 793 F.2d at 1443, this result comports with the direction in Butner that state law should be applied in determining the exact extent of a mortgagee’s interest in rental income. This uniform application of state and federal law in this regard prevents “a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ ” Butner, 440 U.S. at 55, 99 S.Ct. at 918 quoting Lewis v. Manufacturers Nat’l Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961). The judgment of the United States District Court for the Northern District of Oklahoma entered on February 19, 1988, is AFFIRMED. . For the purposes of this opinion, we subsume within the term “debtors” appellant unsecured creditors committee — a party of like interest to the Woods. . Cash collateral is" }, { "docid": "4773208", "title": "", "text": "that acquire rights in such property before the date of perfection. If such law requires seizure of such property or commencement of an action to accomplish such perfection, and such property has not been seized or such action has not been commenced before the date of filing of the petition, such interest in such property shall be perfected by notice within the time fixed by such law for such seizure or commencement. The Casbeer court held that for 546(b) to apply, Texas law must allow the creditor’s perfection to relate back prior to filing, when the debtor-in-possession, or trustee, assumed the status of a bona fide purchaser pursuant to 11 U.S.C. Section 544: The perfection of those interests relates back to a time before bankruptcy for the purpose of Section 546(b); the perfection does not relate back to a time before bankruptcy for purposes of entitlement to rents. To allow otherwise would authorize the collection of pre-petition rentals, a result clearly at odds with Taylor v. Brennan, 621 S.W.2d at 594, and the warning in Butner v. United States, 440 U.S. at 55, 99 S.Ct. at 918 (quoting Lewis v. Manufacturers Nat’l. Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961), that a party should not receive a “windfall merely by the reason of the happenstance of bankruptcy.” Id. A majority of courts follow the 5th Circuit, but this and other recent decisions conclude that Congress did not intend Section 546(b) as a vehicle for post-petition perfection of a security interest in rents. Its primary purpose “is to protect, in spite of the surprise intervention of a bankruptcy petition, those whom state law protects by allowing them to perfect their liens or interests as of an effective date that is earlier than the date of perfection.” HR Rep. No. 95-595, 95th Cong., 1st Sess. 371 (1977); S Rep. No. 95-989, 95th Cong., 2d Sess. 86 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5787, 5872, 6327. Congress contemplated that the statute would further the objectives of the Uniform Commercial Code, which allows a security interest perfected" }, { "docid": "10168536", "title": "", "text": "the transaction costs of the bankruptcy. Also, to the extent that adequate protection for lost opportunity cost is taken into account in the formulation of a plan, reducing the principal on outstanding debt, encouraging the secured creditor to modify his security or to cooperate in stretching out payments after bankruptcy, the debtor’s and unsecured creditors’ prospects are ultimately improved. Providing adequate protection to the secured creditor for his lost opportunity cost occasioned by bankruptcy is not the foe of the reorganization process. I can do no better to summarize the position of the dissent than to quote from American Mariner: The secured creditor’s right to take possession of and sell collateral on the debtor’s default has substantial, measurable value. The secured creditor bargains for this right when it agrees to extend credit to the debtor and both parties consider the right part of the creditor’s bargain. The right constitutes an “interest in property” that is “created and defined by state law,” and we are aware of no federal interest that requires this right of the secured creditor to go unprotected “simply because an interested party is involved in a bankruptcy proceeding.” See Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 136 (1979). The Court in But-ner observed that “[ujniform treatment of property interests by both state and federal courts within a State serves ... to prevent a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ ” 440 U.S. at 55, 99 S.Ct. at 918 (quoting Lewis v. Manufacturers National Bank, 364 U.S. 603, 609, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961)). To the extent that the debtor in bankruptcy can prevent the secured creditor from enforcing its rights against collateral while the debtor benefits from the creditor’s money, the debtor and his unsecured creditors receive a windfall at the expense of the secured creditor. We conclude that sections 361 and 362(d) were drafted to preclude such a windfall and to insure that the secured creditor receives the benefit of its bargain. We are satisfied that our holding in" } ]

[ { "docid": "18634454", "title": "", "text": "53-24-303, M.C.A., deals only with aid and treatment of persons who appear to be intoxicated in public places. Plaintiff could not claim that Patrick Wagar was deprived of the equal protection of the law, or reasonably argue that police will not aid those perceived to be public drunks but will aid others under the statute; the statute by its terms applies only to those who are drunk in public. Plaintiff’s claim under 42 U.S.C. § 1986 for defendants’ failure to prevent a known conspiracy to deprive Patrick Wagar of equal protection and equal privileges and immunities under the law is likewise deficient. An indispensible prerequisite for a 42 U.S.C. § 1986 claim is the existence of a conspiracy actionable under 42 U.S.C. § 1985. Hahn v. Sargent, 523 F.2d 461, 460 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 54 (1976); Hamilton v. Chaffin, 506 F.2d 904, 914 (5th Cir. 1975). Dismissal of the § 1985 conspiracy claim, therefore, ipso facto requires dismissal of the § 1986 claim of failure to prevent a known § 1985 conspiracy. II. 42 U.S.C. § 1988 To state' a claim under 42 U.S.C. § 1983, it is essential that plaintiff allege facts showing, first, that defendants acted under color of state law and, second, that such actions subjected plaintiff’s decedent to the deprivation of “rights, privileges, or immunities secured by the Constitution and laws [of the United States].” 42 U.S.C. § 1983. These are the “only [two] elements which need to be present in order to establish a claim for damages under the Civil Rights Act.” Marshall v. Sawyer, 301 F.2d 639, 646 (9th Cir. 1962). Plaintiff, in his complaint, alleges facts which establish that defendants acted under color of state law. The facts, as alleged in plaintiff’s complaint, are that defendants engaged in all of the complained actions or inactions toward Patrick Wagar on July 9 and 10, 1977, while defendants were police officers of the City of Great Falls, ostensibly performing their official duties. Even though defendants’ conduct toward Patrick Wagar was allegedly in violation of Montana" } ]

[ { "docid": "22901455", "title": "", "text": "the plaintiff alleges civil rights violations. Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). Section 1983 provides a civil claim for damages against any person who, acting under color of state law, deprives another of a right, privilege or immunity secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983; Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir.1990). Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432, 85 L.Ed.2d 791 (1985). In order to prevail on a section 1983 claim, the plaintiff must show that the defendant’s conduct deprived him of a federal right. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Rand v. Perales, 737 F.2d 257, 260 (2d Cir.1984). A plaintiff may allege facts tending to establish the deprivation of federal constitutional rights under color of state law and still fail to state a claim because the defendant has absolute immunity from liability. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (state prosecutors have absolute immunity for their actions in initiating prosecutions). Such is the case here. Sykes alleges in his complaint that his due process rights were violated by the submission of a false affidavit which “declar[ed] that ... plaintiff orally waived his constitutional right to a preliminary hearing.” The gravamen of this claim is not that Sykes was illegally incarcerated; rather, it is that the submission of the affidavit by James frustrated or delayed the habeas relief sought by Sykes, resulting in his incarceration for thirteen months. This claim of deprivation of constitutional rights is barred because James, as a witness in the state habeas proceeding, is absolutely immune from liability for the evidence he furnished in the habeas" }, { "docid": "954094", "title": "", "text": ". the violation of any rights that might arise exclusively by failure to comply with some of the procedures provided by city charter, ordinances and regulations thereunder, do not rise to the level of a federal constitutional violation.” State of Mo. ex rel. Gore v. Wochner, 620 F.2d 183 (8th Cir. 1980). D. Plaintiff further claims that defendants Killeen, Morgan and Tungate conspired together “to deprive Your Plaintiff of the equal privileges and immunities under the laws and of equal protection of the laws,” under 42 U.S.C. § 1985(3), and that defendants Morgan, Behler, Petitpren, Majors and Kozak failed to prevent such conspiracy despite their knowledge and ability to do so under 42 U.S.C. § 1986. Section 1985(3) makes actionable a conspiracy to deprive a person of the equal protection of the law. Unlike § 1983, “color of law” is not necessary for a § 1985 action; however, it is necessary to allege and prove a conspiracy, the acts in furtherance thereof and that these acts stemmed from a “class-based” animus. Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971); Family Forum v. Archdiocese of Detroit, 347 F.Supp. 1167 (E.D.Mich.1972). The conspiracy “. . . must aim at a deprivation of the equal enjoyment of rights secured by the law to all.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Class-based motivation is an essential element of § 1985(3) claim. “The language [of the statute] requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” (Emphasis in original). Id. at 102, 91 S.Ct. at 1798. The Second Amended Complaint fails to allege with any particularity the existence of any class-based, invidiously discriminatory animus behind the actions of defendants which affected plaintiff. Paragraph 17 of the Second Amended Complaint alleges “That each and all of the acts of the Defendants alleged herein were done to Plaintiff, a black person, on the basis of his race and color.” The allegations in support merely indicate defendants’" }, { "docid": "18496310", "title": "", "text": "42 U.S.C. § 1985, because there is no allegation of a racially-motivated conspiracy. See Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.1993), cert. denied, 510 U.S. 1093, 114 S.Ct. 925, 127 L.Ed.2d 218 (1994) (noting that “1985(3) does not ‘apply to all tortious, conspiratorial interferences with the rights of others,’ but rather, only to conspiracies motivated by ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus.’ ”), quoting Griffin v. Breckenridge, 403 U.S. 88,101-02, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). The amended complaint likewise fails to state a claim under 42 U.S.C. § 1986, as there is no actionable claim under 42 U.S.C. § 1985. See Brown, v. Reardon, 770 F.2d 896, 907 (10th Cir. 1985) (“The district court did not err in finding that the § 1986 claim is dependent upon the existence of a valid claim under § 1985.”). Furthermore, the amended complaint fails to state any actionable claims under 42 U.S.C. § 1983. Such a claim requires a showing that the Defendants “deprived [the Plaintiff] of a right secured by the Constitution and laws of the United States while ... acting under color of state law.” See Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.1989), citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Most of the Defendants herein would appear to be private parties, and although a “ § 1983 conspiracy claim may arise when a private actor conspires with [a] state actor to deprive a person of a constitutional right under color of state law,” Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990), the allegations of the amended complaint are clearly insufficient to establish the existence of any conspiracy to violate the Plaintiffs civil rights. See, e.g., Crab-tree By and Through Crabtree v. Muchmore, 904 F.2d 1475, 1481 (10th Cir.1990) (“[T]he rule is clear that allegations of conspiracy must provide some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action.”). See also Snell v. Tunnell, 920 F.2d 673, 702 (10th Cir.1990), cert." }, { "docid": "15712480", "title": "", "text": "in an action at law, suit in equity, or other proper proceeding for redress. To prevail on a 42 U.S.C. § 1983 claim, the claimant must prove conduct by a person acting under color of state law deprived the claimant of a federal constitutional or federal legal right. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986) (to state a cause of action under § 1983, a plaintiff must “plead that (1) the defendants acted under color of state law and (2) deprived plaintiff of rights secured by the Constitution or federal statutes”); West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Courts must liberally construe pro se litigants’ complaints. Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). A person acts “under color of state law” for purposes of 42 U.S.C. § 1983 if he “exercise[s] power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” West, 487 U.S. at 49, 108 S.Ct. 2250 (citation omitted). “[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.” Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.1997) (citation omitted). Munoz’s allegations against Sheriff Kolender appear to describe only conduct under color of state law. Munoz complains, among other things, his detention in San Diego County Jail does not comply with California state law and regulations. Violations of state law standing alone do not afford a basis for relief in federal civil rights litigation. An essential element of any 42 U.S.C. § 1983 claim is that the challenged conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. § 1983; see West, 487 U.S. at 49, 108 S.Ct. 2250; WMX Techs., Inc. v. Miller, 197 F.3d, 367, 372 (9th Cir.1999). However, state regulations can sometimes give rise to liberty interests that are protected by the Fourteenth Amendment. Meachum v. Fano, 427" }, { "docid": "6093051", "title": "", "text": "conspiracy actionable under § 1985 is an indispensible prerequisite for a § 1986 claim. Wagar v. Hasenkrug, 486 F.Supp. 47, 51 (D.Mont.1980); Kedra v. City of Philadelphia, 454 F.Supp. 652, 663 (E.D.Pa.1978). Since a claim for relief under § 1985 had not been stated, plaintiff cannot prevail under § 1986. To prevail under 42 U.S.C. § 1983, plaintiff must show that defendants acted under color of state law to deprive him of “rights, privileges or immunities secured by the Constitution and laws [of the United States].” 42 U.S.C. § 1983. Plaintiff asserts that his procedural due process rights were violated by the defendant’s refusal to allow him to return to a community trusty work program. Incarceration does not isolate the plaintiff from the protection of the constitution. Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed. 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). However, “[n]ot every ‘grievous loss’ suffered at the hands of the state will require the procedural protection of constitutional due process.” Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 843 (1985), citing Meachum v. Fano, 427 U.S. at 224, 96 S.Ct. at 2538. “The threshold question in due process analysis is whether a constitutionally protected interest is implicated.” Id. at 843, citing Meachum v. Fano, 427 U.S. at 228-24, 96 S.Ct. at 2588. Such a constitutionally protected interest, sufficient to trigger procedural due process rights, may originate in the Constitution or in state laws and regulations. Hewitt v. Helms, 459 U.S. 460, 469-72, 103 S.Ct. 864, 870-71, 74 L.Ed.2d 675 (1983); Meachum v. Fano, 427 U.S. at 223-27, 96 S.Ct. at 2537-39. A state prisoner has no independent constitutional right to employment. The plaintiff may avail himself of due process protection here only if the state has created a protected interest in his employment in the community trusty work program. A state may create a protected interest by imposing substantive regulatory limitations on the discretion of prison officials. Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813" }, { "docid": "11555643", "title": "", "text": "is some further state of mind requirement required for violation of either of the underlying constitutional claims. Ill THE DUE PROCESS SIMPLICITER THEORY The more direct of plaintiff’s section 1983 claims is that the defendants caused him to be denied his liberty without due process of law. Again, the Supreme Court has instructed the lower courts as to the specific prerequisites that the plaintiff must satisfy in order to prevail on his claim that he was divested of a protected interest without due process of law. After showing that the defendants were acting under color of state law, he must prove: a. That the interest deprived was constitutionally protected (i.e., life, liberty, or property); b. That the deprivation was without due process of law; and c. That the charged defendants subjected him, or caused him to be subjected, to the deprivation. (See Parratt v. Taylor, 451 U.S. at 536, 101 S.Ct. at 1913). A. The Protected Interest The first of these factors presents no obstacle to this plaintiff. It is manifest that Mr. Haygood was deprived of a protected interest: he lost no less than his liberty. After life itself, no right is more jealously guarded by our Constitution, legal system, and our cultural mores. Yet, as Justice Rehnquist stresses, “[t]he Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty ‘without due process of law.’ ” Baker v. McCollan, 443 U.S. at 145, 99 S.Ct. at 2695; Parratt v. Taylor, 451 U.S. at 536, 101 S.Ct. at 1913. Indeed, for a number of years Frank Hay-good was serving a sentence duly imposed by a court of law; there is no assertion that he was initially incarcerated without due process. See, Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). After his term of lawful incarceration came to an end, however, the plaintiff remained in prison. It is that period of unlawful detention which gives rise to the present lawsuit, and it is upon that period the analysis must focus. B. The Process Due “Once it is" }, { "docid": "6093049", "title": "", "text": "causing plaintiff to lose “work time” credits and to incur financial loss. This Court assigned this case to the United States Magistrate, Phyllis Halsey Atkins, in accordance with 28 U.S.C. § 636(b)(1)(A). The Magistrate granted plaintiffs motion to proceed in forma pauperis. The Magistrate filed her Report and Recommendation recommending to this Court that it dismiss the plaintiffs complaint without prejudice and without service on defendants because it is frivolous within the meaning of 28 U.S.C. § 1915(d) in that it fails to allege an arguable claim of constitutional dimension which would give the court subject matter jurisdiction. Plaintiff timely filed objections to the Magistrate’s recommendations in accord with 28 U.S.C. § 636(b)(1). A court may authorize a person who is unable to pay the costs of suit to proceed in forma pauperis, allowing commencement of an action without prepayment of fees and costs or security. 28 U.S.C. § 1915(a). The court may dismiss an in forma pauper-is action that is frivolous or malicious. 28 U.S.C. § 1915(d). Because the freedom from economic constraints afforded by 28 U.S.C. § 1915 increases the probability of abuse of the legal process through the filing of frivolous suits, most of the circuits have followed the procedure recommended by the Federal Judicial Center and permit dismissal of in forma pauperis actions before service of process. See, e.g., Franklin v. Murphy, 745 F.2d 1221 (9th Cir.1984). The court in Franklin adopted as the standard for frivolity, “an assessment of the substance of the claim presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded.” Id. at 1227, quoting Watson v. Ault, 525 F.2d 886 (5th Cir.1976). Plaintiffs claims under 42 U.S.C. §§ 1985 and 1986 may be disposed of summarily. Claims under § 1985 must be motivated by racial or other class based animus. Mollow v. Carlton, 716 F.2d 627, 628 (9th Cir.1983); Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir.1978). Plaintiff has failed to allege that the defendants had the requisite motivation, nor has he offered any evidence to that effect. Existence of a" }, { "docid": "13888125", "title": "", "text": "42 U.S.C. §§ 1983, 1985 and 1986. The only part of § 1985 that conceivably could be applicable to this case is subsection (3), which forbids conspiracies to deprive any person of the equal protection of the laws. Perhaps Counts Four and Five, in which the plaintiff complains that the defendants have a custom of detaining persons and then filing petty offense charges against them without probable cause, and have subjected him to such treatment, are thought to be within the coverage of § 1985(3). However, said statute proscribes only those conspiracies which are motivated by a racial or other class-based invidiously discriminatory animus. Havas v. Thornton, 609 F.2d 372 (9th Cir. 1979); Wagar v. Hasenkrug, 486 F.Supp. 47 (D.Mont.1980). The class must be something that the plaintiff cannot change, such as his color or gender. Id. No such class is suggested in the amended complaint. Due process violations alone will not sustain an action based on § 1985(3). Hoffman v. Halden, supra; Rundle v. Madigan, 356 F.Supp. 1048 (N.D.Cal.1972); Brosten v. Scheeler, 360 F.Supp. 608 (N.D.Ill.1973), aff’d w/o op. 495 F.2d 1375 (7th Cir. 1974). Therefore, the law of this case shall be that the amended complaint fails to state a claim under 42 U.S.C. § 1985(3). If a municipality has a policy or custom of refusing or neglecting to prevent § 1985 violations by its agents or employees, the municipality may be held liable under § 1986. Vasquez v. City of Reno, 461 F.Supp. 1098 (D.Nev.1978). However, an indispensable prerequisite of a § 1986 claim is the existence of a conspiracy actionable under § 1985. Id.; Wagar v. Hasenkrug, supra. As explained above, no § 1985 conspiracy has been shown to exist herein. Therefore, the law of this case shall be that the amended complaint fails to state a claim under 42 U.S.C. § 1986. Finally, in Count Two of the amended complaint, the plaintiff complains of the refusal of defendants City of Reno and County of Washoe to provide him with medical treatment. Such conduct does not come within the Eighth Amendment’s strictures against cruel and inhuman" }, { "docid": "22926796", "title": "", "text": "laws.” 42 U.S.C. § 1985. To prevail on a § 1985(3) claim, one must prove “ ‘(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities of the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.’ ” Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir.2003) (quoting United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983)). Moreover, the Supreme Court has stated that “[t]he language requiring intent to deprive of equal protection, or equal privileges and immunities, means there must be some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ actions.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). In his complaint, brief in opposition to summary judgment, and appellate brief, Radvansky has failed to allege any facts sufficient to establish a conspiracy claim under § 1985(3). Radvansky has produced no evidence to demonstrate his arrest on the night of May 15 was in any way motivated by racial or other class-based animus. See Bass, 167 F.3d at 1051 (upholding dismissal of plaintiffs conspiracy claim, finding failure to show that police officers’ use of excessive force was motivated by any invidious class-based animus). Because Radvansky has not demonstrated either a conspiracy or invidiously discriminatory animus, the district court’s grant of summary judgment with regards to the § 1985 count is affirmed. Section 1986 establishes a cause of action against anyone, who has knowledge of a conspiracy under § 1985, and “having-power to prevent or aid in preventing the commission of the same, neglects or refuses so to do.” 42 U.S.C. § 1986. Rad- vansky argues that because “Appellees all had knowledge of the wrongful acts, liability is imposed pursuant to 42 U.S.C. § 1986.” Appellant’s Br. at 59. But “[w]here plaintiff has" }, { "docid": "2301745", "title": "", "text": "a complaint must allege that the defendants who allegedly conspired sought, with discriminatory intent, to deprive the plaintiff of a right covered by the Constitution or other laws. See Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir.1990). In this case, Plaintiff has not alleged any discriminatory intent by the Defendants against him. Rather, he only alleges that Defendants conspired to deprive him of his constitutional rights. This allegation is not enough to state a valid claim under 42 U.S.C. § 1985(3). See Temple of the Lost Sheep, Inc. v. Abrams, 930 F.2d 178, 185 (2d Cir. 1991) (claim under 42 U.S.C. § 1985(3) dismissed as the complaint was “couched in terms of conclusory allegations and failed to demonstrate ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action’ as required by § 1985”) (quoting New York State National Organization for Women v. Terry, 886 F.2d 1339, 1358 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990)). Since Plaintiffs complaint does not assert that the alleged conspiracy was formed “for the purpose of depriving” Plaintiff “of the equal protection of the laws, or of equal privileges or immunities under the laws,” see 42 U.S.C. § 1985, the Complaint fails to state a claim under 42 U.S.C. § 1985 for which relief can be granted. See Dubois v. Connecticut State Board of Education, 727 F.2d 44, 47 n. 3 (2d Cir.1984). Accordingly, Plaintiffs cause of action under 42 U.S.C. § 1985 should be dismissed. (c) 42 U.S.C. § 1986 claim 42 U.S.C. § 1986 imposes liability on an individual who has knowledge of wrongs prohibited under 42 U.S.C. § 1985, yet fails to prevent them. However, without a violation of Section 1985, there can be no violation of Section 1986. Hahn v. Sargent, 523 F.2d 461, 469-70 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). A claim under 42 U.S.C. § 1986 is contingent upon a valid § 1985 claim. See Seguin v. City of Sterling Heights, 968 F.2d 584, 590 (6th Cir.1992); Trerice v. Pedersen, 769" }, { "docid": "954093", "title": "", "text": "defendants deprived plaintiff of his rights nor whether plaintiff has in fact asserted a constitutional injury sufficient to invoke § 1983 — i. e., whether plaintiff has suffered deprivation of a federal right secured by the Constitution and laws of the United States. Plaintiff alleges he was wrongfully suspended in contravention of civil service rules and regulations. This, however, is not a violation of a federal right or privilege. “In order for [plaintiff] to bring a claim under 42 U.S.C. § 1983, a specific and articulable constitutional right must have been transgressed and a cognizable claim for relief must be stated on the face of the pleading. . . . Rights which derive solely from state law, however, cannot be the subject of a claim for relief under 42 U.S.C. § 1983 . . Only when a violation of state law results in an infringement of a federally protected right can a cause of action be said to exist. ... ‘A violation of a federal constitutional provision must be shown.’ ” (citations omitted). “. . . the violation of any rights that might arise exclusively by failure to comply with some of the procedures provided by city charter, ordinances and regulations thereunder, do not rise to the level of a federal constitutional violation.” State of Mo. ex rel. Gore v. Wochner, 620 F.2d 183 (8th Cir. 1980). D. Plaintiff further claims that defendants Killeen, Morgan and Tungate conspired together “to deprive Your Plaintiff of the equal privileges and immunities under the laws and of equal protection of the laws,” under 42 U.S.C. § 1985(3), and that defendants Morgan, Behler, Petitpren, Majors and Kozak failed to prevent such conspiracy despite their knowledge and ability to do so under 42 U.S.C. § 1986. Section 1985(3) makes actionable a conspiracy to deprive a person of the equal protection of the law. Unlike § 1983, “color of law” is not necessary for a § 1985 action; however, it is necessary to allege and prove a conspiracy, the acts in furtherance thereof and that these acts stemmed from a “class-based” animus. Place v. Shepherd, 446" }, { "docid": "22997276", "title": "", "text": "U.S.C. § 1985(3) are (1) a conspiracy by the defendants, (2) with a purpose of depriving the plaintiff of equal protection of the law or equal privileges or immunities under the law, (3) a purposeful intent to discriminate, i. e., there must be some racial or perhaps otherwise class based invidiously discriminatory animus behind the conspirators’ action, and (4) injury to the person or property of the plaintiff or his deprivation of a right or privilege as a citizen of the United States resulting from actions in the furtherance of the conspiracy. Compare Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) with Granville v. Hunt, 411 F.2d 9, 11 (5th Cir. 1969). See also Jacobson v. Industrial Foundation of Permian Basin, 456 F.2d 258 (5th Cir. 1972). Applying this standard to the complaint sub judice, it seems the complaint fails to state a claim under 42 U.S.C. § 1985(3). Petitioner has failed to allege any facts that would tend to show that the alleged conspirators were motivated by some racial or otherwise class-based invidiously discriminatory animus. To maintain a cause of action under 42 U.S.C. § 1983 plaintiff must show (1) that he has been deprived of a right, privilege or immunity secured by the Constitution and laws of the United States, (2) that the defendants subjected plaintiff to the deprivation or “cause[d]” him to be so subjected, and (3) that the defendants acted “under color of any statute, ordinance, regula tion, custom or usage of any State . . . Kletschka v. Driver, 411 F. 2d 436, 447 (2d Cir. 1969). For a claim under 42 U.S.C. § 1983, a conspiracy is not a vital element. Nevertheless, a conspiracy may be used as the legal mechanism through which to impose liability on each and all defendants without regard to the person doing the particular act. Mizell v. North Bro-ward Hosp. Dist., 427 F.2d 468, 472-473 (5th Cir. 1970); Nesmith v. Alford, 318 F.2d 110, 126 (5th Cir. 1963). For example, in this case defendants Bales, a private citizen, and Kirksey and Taylor, federal" }, { "docid": "2076939", "title": "", "text": "Conspiracy In Count X, Plaintiff appears to assert claims for conspiracy under sections 1983,1985 and 1986. In order to state a claim for conspiracy under section 1983, “a plaintiff must establish (1) the existence of a conspiracy involving state action; and (2) a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy.” Gale v. Storti, 608 F.Supp.2d 629, 635 (E.D.Pa.2009) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir.1990) (abrogated on other grounds)). A plaintiff must allege that there was an agreement or meeting of the minds to violate his constitutional rights. Id. (citing Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir.2008)). “[I]n order to state a claim under section 1985(3), a plaintiff must allege: (1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States.” Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.1997) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)). Section 1986 provides an additional cause of action for those able to state a claim under section 1985. Section 1986 provides a cause of action against persons who are aware of a section 1985 conspiracy, but fail to intervene. In order to state a claim under section 1986, a plaintiff must allege that: “(1) the defendant had actual knowledge of a section 1985 conspiracy, (2) the defendant had the power to prevent or aid in preventing the commission of a § 1985 violation, (3) the defendant neglected or refused to prevent a § 1985 conspiracy, and (4) a wrongful act was committed.” Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir.1994). “[T]he success of a section 1986 claim is contingent upon the existence of a viable section 1985 claim.” Murphy v. Yates, 2005 WL 2989630, at" }, { "docid": "6093050", "title": "", "text": "by 28 U.S.C. § 1915 increases the probability of abuse of the legal process through the filing of frivolous suits, most of the circuits have followed the procedure recommended by the Federal Judicial Center and permit dismissal of in forma pauperis actions before service of process. See, e.g., Franklin v. Murphy, 745 F.2d 1221 (9th Cir.1984). The court in Franklin adopted as the standard for frivolity, “an assessment of the substance of the claim presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded.” Id. at 1227, quoting Watson v. Ault, 525 F.2d 886 (5th Cir.1976). Plaintiffs claims under 42 U.S.C. §§ 1985 and 1986 may be disposed of summarily. Claims under § 1985 must be motivated by racial or other class based animus. Mollow v. Carlton, 716 F.2d 627, 628 (9th Cir.1983); Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir.1978). Plaintiff has failed to allege that the defendants had the requisite motivation, nor has he offered any evidence to that effect. Existence of a conspiracy actionable under § 1985 is an indispensible prerequisite for a § 1986 claim. Wagar v. Hasenkrug, 486 F.Supp. 47, 51 (D.Mont.1980); Kedra v. City of Philadelphia, 454 F.Supp. 652, 663 (E.D.Pa.1978). Since a claim for relief under § 1985 had not been stated, plaintiff cannot prevail under § 1986. To prevail under 42 U.S.C. § 1983, plaintiff must show that defendants acted under color of state law to deprive him of “rights, privileges or immunities secured by the Constitution and laws [of the United States].” 42 U.S.C. § 1983. Plaintiff asserts that his procedural due process rights were violated by the defendant’s refusal to allow him to return to a community trusty work program. Incarceration does not isolate the plaintiff from the protection of the constitution. Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed. 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). However, “[n]ot every ‘grievous loss’ suffered at the hands of the state will require the procedural protection of" }, { "docid": "12893520", "title": "", "text": "308 (5th Cir.1978). Further, the Fifth Circuit has established that a viable § 1962(d) claim requires proof of the enterprise and racketeering elements plus the Defendants’ objective manifestation of intent to participate, either directly or indirectly, in the affairs of the enterprise. United States v. Cauble, 706 F.2d 1322 (5th Cir.1983). It is axiomatic, therefore, that there can be no proper § 1962(d) conspiracy allegation without a plausible assertion that a RICO enterprise exists and that it in fact engaged in a pattern of racketeering activity. This Court has already determined that the Plaintiff’s pleadings fail to sufficiently allege these essential elements. The Plaintiff has supported his position with an abundance of case law that involves common civil conspiracy, however, this does not suffice to allege a § 1962(d) RICO conspiracy. Finding nothing in the Plaintiff’s pleadings that properly asserts a RICO enterprise or a pattern of racketeering activity, the RICO conspiracy contention must fail. Civil Rights and Fourteenth Amendment Claims The Plaintiffs invoke 42 U.S.C. § 1983 in conjunction with 28 U.S.C. § 1343 as a jurisdictional basis for action brought in this Court. Using the analysis provided by Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344 (5th Cir.1985), this Court finds jurisdiction and will consider the Defendants’ motions to dismiss these claims. The Plaintiff alleges that he has suffered deprivation of his constitutionally or statutorily protected civil rights at the hands of the Defendants. As a remedy the Plaintiff has turned to the Civil Rights Act of 1871, specifically invoking 42 U.S.C. § 1983, § 1985(2), § 1985(3) and § 1986. A. It is axiomatic that in order to be entitled to relief under 42 U.S.C. § 1983, a Plaintiff must show that he was deprived of a right secured to him under the Constitution or federal law, and that the deprivation occurred under color of state law. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978). The phrase “under color of state law” found in 42 U.S.C. § 1983, reflects the “state action” requirement of the fourteenth amendment," }, { "docid": "4421312", "title": "", "text": "Redevelopment Authority of City of Philadelphia v. Royal Janet Corp., 42 Pa. Cmwlth. 546, 401 A.2d 17 (1979). Plaintiffs make no allegation that they have pursued unsuccessfully such procedures. 5. Conspiracy Plaintiffs do not make clear what the basis of their conspiracy claim is. In Count V they merely assert that defendants conspired to deprive them of property, presumably without due process, and of other unspecified rights secured by federal and state law. To sustain a federal conspiracy claim under § 1985(3), plaintiffs must allege that the purported conspirators were motivated by a racial or class-based animus. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971); Pratt v. Thornburgh, 807 F.2d 355, 356-57 (3d Cir.1986). See also Dunn, 681 F.Supp. at 251 (§ 1985 not provide remedy for conspiracy to deny due process rights). Plaintiffs make no such allegation. While the existence of a conspiracy otherwise may supply the element of state action and expand the scope of liability through the concept of imputation, § 1983 does not provide a cause of action per se for conspiracy to deprive one of a constitutional right. Without an actual deprivation, there can be no liability under § 1983. See Kaplan v. Clear Lake City Water Authority, 794 F.2d 1059, 1065 (5th Cir.1986); Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir.1980); Dean Tarry, 650 F.Supp. at 1553 n. 15. Plaintiffs fail to allege with requisite specificity the particular objectives and means of the purported conspiracy as they may relate to an actual deprivation of an identified constitutional right. As noted, it appears from their complaint that plaintiffs have as yet not been deprived of property of or an opportunity to seek just compensation for any inverse condemnation they believe has occurred. D. Pendent Claims In Count III of their proposed Second Amended Complaint plaintiffs assert a claim for deprivation of property without due process in violation of Article I, Section 10 of the Pennsylvania Constitution. That provision protects persons accused of crime against double jeopardy and limits the Commonwealth’s right of eminent domain. Article" }, { "docid": "6011700", "title": "", "text": "Because McIntosh failed to make a showing of racial discrimination, his section 1981 and section 1985(3) claims were properly dismissed. Further, because recovery under section 1986 is dependent on the existence of a claim under section 1985, McIntosh’s section 1986 claim must also fail and was properly dismissed. Mollnow v. Carlton, 716 F.2d 627, 632 (9th Cir.1983). We turn next to McIntosh’s section 1983 claims. In the district court, McIntosh’s section 1983 claims centered around three asserted constitutional deprivations. First, McIntosh asserted that defendants’ actions denied him of his first amendment right of free speech. Second, McIntosh argued that the defendants’ actions constituted false arrest and false imprisonment in violation of his fourth amendment right to be free from unreasonable searches and seizures. Third, McIntosh contended that defendants’ actions were racially motivated and as such violated his constitutional right to equal protection under the law. To succeed on these claims McIntosh must make two separate and independent showings. First, McIntosh must demonstrate that he was “deprived of a right ‘secured by the Constitution and the laws’ of the United States.” Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978) (quoting 42 U.S.C. § 1983). Second, McIntosh must show that the defendants “deprived [him] of this right [while] acting ‘under color of any statute’ of the State” of Arkansas. Id. Initially, we reject as meritless McIntosh’s claim that defendants’ actions were racially motivated. The district court specifically found that a racially mixed audience attended the luncheon. McIntosh, 582 F.Supp. at 1247. Further, McIntosh failed to make any showing whatsoever of racial discrimination. Id. at 1250. Because McIntosh’s section 1983 action based on race discrimination is patently without merit, we will not address it further and turn instead to McIntosh’s assertion that the defendants’ actions violated his first amendment right to free speech. In the context of this claim, the district court found that the Frank White Appreciation Luncheon was a completely private fundraising event. Id. at 1246. The district court also found that McIntosh’s purpose in attending this private event was to make" }, { "docid": "11601452", "title": "", "text": "facts showing that the defendant conspired against the plaintiff because of his membership in a class and that the criteria defining the class were invidious. Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). Moreover, if the factual circumstances fail to indicate the existence of a class-oriented, invidious animus, an allegation of unequal application of the law to an individual does not state a § 1985(3) claim even if the action was malicious. Barrio v. McDonough District Hospital, 377 F.Supp. 317 (S.D.Ill. 1974). In a motion to dismiss, facts well pleaded must be taken as true, although unsupported conclusions may be disregarded. Van Daele v. Vinci, 294 F.Supp. 71 (N.D.Ill.1968). Even accepting the facts as true, the portion of the complaint alleging a conspiracy under § 1985 does not state a cause of action. Section 1985(3) provides a cause of action only where a conspiracy is directed against a person as a member of a class; it “does not provide [for one] where the alleged conspiracy is directed toward an individual personally.” Turner v. Baxley, 354 F.Supp. 963, 973 (D.Vt.1972) and cases cited. The court is also of the opinion that most of the allegations in the complaint do not state a violation under 42 U.S.C. § 1983. It is well settled that in order to maintain a Section 1983 action the plaintiff must allege conduct depriving him of a right, privilege, or immunity secured by the Constitution and laws of the United States. An action for unlawful arrest and detention may be properly brought under 42 U.S.C. § 1983 as it represents an unconstitutional deprivation under the Fourth and Fourteenth Amendments. Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968). However, not every tort recognized under state law is sufficient to pass the constitutional threshold as to allow the maintenance of an action under Section 1983. Mimms v. Philadelphia Newspapers, Inc., 352 F.Supp. 862 (E.D.Pa.1972). A defamation claim does not implicate any federally protected rights and is therefore not cognizable under the Civil Rights Act. Paul" }, { "docid": "18634451", "title": "", "text": "that duty, while acting under color of state law, plaintiff claims, deprived Patrick Wagar of his life without due process of law, and subjected him to cruel and unusual punishment, in violation of 42 U.S.C. § 1983. Plaintiff also claims that the officers’ actions violated 42 U.S.C. § 1985 (conspiracy to interfere with civil rights) and 42 U.S.C. § 1986 (failure to prevent conspiracy to violate civil rights), as well as their duties under § 53-24-303 M.C.A. to care for the decedent. Defendants have moved to dismiss all of plaintiff’s federal claims, asserting that the facts as set forth in plaintiff’s complaint constitute a purely state negligence claim. The court shall consider plaintiff’s federal claims seriatim. I. 42 U.S.C. §§ 1985 and 1986 Plaintiff’s 42 U.S.C. §§ 1985 and 1986 claims shall be dismissed. The language of 42 U.S.C. § 1985(1) (preventing United States officer from performing his duties) and 42 U.S.C. § 1985(2) (obstructing justice) is inapplicable to the facts as alleged by plaintiff. 42 U.S.C. § 1985(3) expressly makes defendants liable for conspiring to deprive “any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . .” Despite this facially expansive statutory language, the Supreme Court has interpreted 42 U.S.C. § 1985(3) to proscribe only those conspiracies which are motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus . . . .” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Nowhere in plaintiff’s complaint does plaintiff allege that defendants’ actions or inactions toward Patrick Wagar were motivated by an animus towards a class of which Patrick Wagar was a member. Plaintiff, in his brief in opposition to defendants’ motion to dismiss, has proposed to amend his complaint to allege that Patrick Wagar was a member of a class of persons perceived to be “public drunks”. Unlike racial or sexual animus, however, discrimination against perceived public drunks is not animus based on immutable characteristics for which the members of the alleged class have no responsibility, and" }, { "docid": "15712481", "title": "", "text": "49, 108 S.Ct. 2250 (citation omitted). “[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.” Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.1997) (citation omitted). Munoz’s allegations against Sheriff Kolender appear to describe only conduct under color of state law. Munoz complains, among other things, his detention in San Diego County Jail does not comply with California state law and regulations. Violations of state law standing alone do not afford a basis for relief in federal civil rights litigation. An essential element of any 42 U.S.C. § 1983 claim is that the challenged conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. § 1983; see West, 487 U.S. at 49, 108 S.Ct. 2250; WMX Techs., Inc. v. Miller, 197 F.3d, 367, 372 (9th Cir.1999). However, state regulations can sometimes give rise to liberty interests that are protected by the Fourteenth Amendment. Meachum v. Fano, 427 U.S. 215, 225-27, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). If the state law at issue created a liberty interest such that a violation of that law constitutes a violation of due process, the violation may be cognizable under 42 U.S.C. § 1983. Wolff, 418 U.S. at 557-58, 94 S.Ct. 2963; see, e.g., Carlo v. City of Chino, 105 F.3d 493 (9th Cir.1997) (finding that California law entitling arrestees access to telephone calls created a protected liberty interest so that violation of that law resulted in a violation of plaintiffs procedural due process rights). The defendant must have violated such a right for liability to attach. 2. Summary Judgment Defendant moves for summary judgment but challenges the Complaint for “failure to state a claim.” Mot. 4:7-8, 5:7— 8. The standards and considerations for judicial review differ under Fed. R. Civ. P. 56(c), addressing the sufficiency of the evidence, and under Fed.R.Civ.P. 12(b)(6), an attack on the pleading for failure to state" } ]

[ { "docid": "5636342", "title": "", "text": "by water pollution, but only one segment had been identified as a WQLS, and the EPA had never acted on that submission. Ace at 1425. While the ACE suit was pending, Alaska submitted a revised list of 48 WQLSs to the EPA. Id. No TMDLs had been attempted. Id. Unlike the states in ACE and Scott, Minnesota has submitted several lists of WQLSs. The EPA disapproved the most recent submission because it did not adequately reflect the number of water bodies that are below water quality standards. The EPA has developed its own list of WQLSs which will be published in. the Federal Register during the first two weeks of December. On this record, it would be inappropriate to find that the State has made a constructive submission of a WQLS list requiring the Administrator’s action. In addition, the EPA has approved the development of TMDLs for the Minnesota River. The Minnesota River Assessment Project has addressed both point and non-point sources of pollution for the 330 miles of the river identified as a WQLS. Full implementation of the Minnesota River Assessment Project was scheduled for July of 1993. Minnesota’s work on TMDLs for the Minnesota River distinguishes it from Scott and ACE where the states had not developed any TMDLs or even initiated the process to develop them. Minnesota is also working on TMDLs for five other WQLSs with scheduled end dates from December 1994 to December 2002, and the EPA approved schedules for two more TMDLs on August 9,1993. Moreover, the EPA has approved 43 TMDL/Wasteload allocations (TMDL/WLAs) submitted by MPCA. The Sierra Club Group argues that these TMDLs are not valid because they do not consider nonpoint source pollution and are the result of studies completed pursuant to a MPCA-EPA agreement for the development and approval of wasteload allocations. The EPA responds that even if the TMDL/WLAs address only point source pollution, they might still be valid TMDLs under Section 303(d). According to the EPA, TMDLs are based on conditions where the water quality standards are not being met. Nonpoint sources normally have a greater effect on" } ]

[ { "docid": "9417401", "title": "", "text": "finds this unreasonable, illogical, and inconsistent with the CWA’s purpose. “State inaction amounting to a refusal to act should not stand in the way of successfully achieving the goals of federal anti-pollution policy.” Scott, 741 F.2d at 998. CONCLUSION NOW, THEREFORE, plaintiffs’ motion for partial summary judgment is GRANTED. The court finds that § 303(d) of the CWA does set out a nondiscretionary duty on the part of the EPA for promulgation of TMDLs in the face of state inaction. The court need not make a broad, generic determination of the point in time at which a state’s inaction may be deemed a “constructive submission.” However, there could hardly be a more compelling case for finding a “constructive submission” than under the facts of this specific case. The court therefore finds that the State of Alaska has effectively created a “constructive submission” of no TMDLs over the past eleven years. The EPA is required, therefore, to initiate its own process of promulgating TMDLs, including any and all necessary steps needed to effectively identify the appropriate waterbodies at issue. The details of this process will be worked out with the court at a future date. . Plaintiffs include Alaska Center for the Environment, Northern Alaska Environmental Center, Southeast Alaska Conservation Council, and Trustees for Alaska. . US Government Accounting Office, \"Water Pollution — More EPA Action Needed to Improve the Quality of Heavily Polluted Waters,” January 1989 (GAO/RCED-89-38) at 34-5, (see Plaintiffs’ Ex. C.) (hereinafter referred to as \"GAO report”). . Since the EPA published its identification of suitable pollutants in December, 1978, states’ first submissions were due 180 days later, or June, 1979. 33 U.S.C. § 1313(d)(2). . Under section 305(b) of the Act, states are required to provide the EPA with a biennial report on the status of the state’s water quality management. It is commonly referred to as a “305(b) report.\" . Within Region X, Washington and Idaho are also delinquent in not developing TMDLs. Oregon is in the process of establishing 40 TMDLs as part of a consent decree resulting from a lawsuit filed in December 1986." }, { "docid": "3590351", "title": "", "text": "limited segments or its listing of TMDLs, the agency must establish its own list of water quality limited segments and TMDLs within 30 days. 33 U.S.C. § 1313(d)(2). The record before the district court showed that the State of Alaska had never submitted any TMDLs to the EPA and that the EPA had done nothing to establish any TMDLs. Relying' on the Seventh Circuit’s decision in Scott v. City of Hammond, 741 F.2d 992 (7th Cir.1984) (cited with approval in City of Las Vegas v. Clark County Nevada, 755 F.2d 697, 703-04 (9th Cir.1985)), the district court held that the State of Aaska’s failure to submit the TMDLs for over a decade amounted to a “constructive submission” of “no TMDLs,” thereby triggering a mandatory duty on the EPA’s part to promulgate TMDLs. 762 F.Supp. at 1426-29. Rejecting the EPA’s contention that its duty was not “mandatory,” the district court pointed out that Congress’ repeated use of the term “shall” in section 303(d) clearly places a mandatory duty upon the EPA to take affirmative action after disapproving a state’s unacceptable submission. Read in light of common sense and the fact that Congress set out such short time lines in this section, ... Congress intended that EPA’s affirmative duties be triggered upon a state’s failure to submit a list or any TMDL at all. Id. at 1427. The district court then quoted with approval the Seventh Circuit’s reasoning in Scott: “We cannot allow the states’ refusal to act to defeat the intent of Congress that TMDLs be established promptly — in accordance with the timetable provided in the statute. In addition, to construe the relevant statute (any other way) would render it wholly ineffective. There is, of course, a strong presumption against such a construction.” Id. (quoting Scott, 741 F.2d at 998). The court reserved the question of the precise remedy to be ordered for a later decision. Following the district court’s decision on the merits, plaintiffs moved to compel the EPA to perform specific mandatory duties under the CWA. In response, the EPA moved for partial summary judgment, seeking to limit" }, { "docid": "6771557", "title": "", "text": "constitute a constructive submittal of no TMDLs, which in turn triggers the EPA’s mandatory duty to develop the TMDLs itself’ within thirty days. The complaints focused primarily on the Clean Water Act’s citizen-suit provision, which confers jurisdiction on the district courts over civil actions brought by “any citizen ... on his own behalf ... against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under [the Clean Water Act] which is not discretionary with the Administrator.” 33 U.S.C. § 1365(a). The complaints also alleged that the EPA’s failure to develop TMDLs in the face of Oklahoma’s constructive submission of no TMDLs “constitutes an arbitrary and capricious action and an abuse of discretion” under the Administrative Procedures Act (APA). On the EPA’s motion to dismiss, the district court accepted Plaintiffs’ theory that a complete failure to submit TMDLs could constitute a constructive submission of no TMDLs, triggering a mandatory duty of the EPA. The court therefore found that Plaintiffs had stated a claim under the Clean Water Act’s citizen-suit provision and under the APA § 706(1) to compel agency action unlawfully withheld. It found, however, that Plaintiffs had not stated a claim under APA § 706(1) to compel agency action unreasonably delayed or § 706(2)(A) to set aside agency action as arbitrary, capricious, or abuse of discretion, as Plaintiffs had neither identified any final agency action nor had Plaintiffs petitioned the EPA to act. The parties agree that Oklahoma submitted no TMDLs before 1994. It is undisputed, however, that before this lawsuit was filed in December 1997 the EPA had approved at least a small number (somewhere between three and twenty-nine) of TMDLs for impaired waterbod-ies, although Plaintiffs argue that none of these met all the statutory and regulatory requirements for a TMDL. The EPA presented uncontroverted evidence to the district court that in 1998 Oklahoma established a schedule to complete more than 1400 TMDLs by 2010. Although Oklahoma did not fully meet its first interim deadline in 1999, it has adjusted the schedule and still expects to finish by 2010. Given this" }, { "docid": "4950506", "title": "", "text": "“proper technical conditions” was defined to mean “the availability of analytical methods, modeling techniques and database necessary to develop a technology defensible TMDL.” Such availability, the EPA said, would have to be determined on a case-by-case basis. Id. at 60662. EPA then asked each state merely to identify “one or more” water-quality limited stream segments within 180 days, leaving it to the future as to when more than one would be due. Id. at 60666. The states were also slow to respond. Most states submitted no lists under Section 303(d), although Nevada submitted a list in 1979 for the Walker River, a river polluted only by nonpoint sources. EPA then took the position that until a state submitted a TMDL, EPA had nothing to approve or disapprove. Houck, 27 ELR at 10393. Eventually, the Seventh Circuit held that the prolonged failure of a state to submit anything was a “constructive submission” of no TMDL at all, triggering EPA’s duty to act. Doing nothing was, the court held, tantamount to approval of a “constructive submission.” Scott v. City of Hammond, 530 F.Supp. 288 (N.D.Ill.1981), affd in part, rev’d in part, 741 F.2d 992, 996 (7th Cir.1984). Another suit in Oregon led to a consent decree in 1987 with a timetable for EPA to act if Oregon did not submit a list of substandard waters. Northwest Environmental Defense Center v. Thomas, No. 86-1578 BU (D. Or. June 3, 1987). In 1991, Judge Rothstein in Seattle held that EPA had flagrantly violated the Act by failing to implement the TMDL requirements for Alaska. Based on Alaska’s “constructive submission” of no TMDLs at all, EPA was required to initiate its own process for promulgating TMDLs for that state. The Ninth Circuit affirmed. Alaska Center for the Environment v. Reilly, 762 F.Supp. 1422, 1429 (W.D.Wash.1991), affd, 20 F.3d 981 (9th Cir.1994). A series of other TMDL lawsuits against EPA were filed in Washington, Idaho, Georgia, New York. Houck, 27 ELR at 10395-96 (summarizing results). That EPA had virtually no TMDL program at all was the conclusion of a 1989 report on the TMDL process by" }, { "docid": "9417395", "title": "", "text": "not been triggered since there had been no claim that the waterbody at issue was water quality limited. City of Las Vegas, Nev. v. Clark County, Nev., 755 F.2d 697, 703-4 (9th Cir.1985). In Environmental Defense Fund v. Costle, 657 F.2d 275 (D.C.Cir.1981), plaintiff challenged the EPA’s failure to develop TMDLs for salinity in the Colorado River, following inadequate submissions from the states. The court found that the EPA’s duties had not yet been triggered since the State’s deadline for submitting a TMDL had not yet passed. Id. at 295. However, the court was clear in its insistence that the EPA act promptly in administering the review and establishment of TMDLs, saying “we admonish EPA to approve or disapprove such identification, prioritization, and load limits within the requisite statutory framework and time limits ... We urge EPA to carefully heed the statutory deadlines in the future.” Id. The court’s emphasis on timely federal review of state action supports an interpretation of the Act that mandates federal intervention when states fail to perform their statutory duties. The EPA’s opposition to this motion is rooted in its conclusion that the Scott court went too far. .While agreeing with the Seventh Circuit’s conclusion that prolonged state inaction may be characterized as a determination that no TMDLs are necessary, the EPA faults the Scott court for going beyond the clear language of the statute and creating an enforcement remedy that was not intended by Congress. The EPA appears to argue that, before its mandatory duty to establish TMDLs is triggered, the agency has discretion (1) to determine whether a state’s failure to submit a TMDL amounts to such a constructive submission, and (2) to decide when to make that determination. The EPA maintains that there is a clear distinction between a court determination that EPA has discretionary authority to act in the absence of state submissions, and an “overreaching” decision that such authority is a mandatory duty. The EPA does not believe that its discretionary powers should be subject to citizen suit enforcement under section 505, and that it should retain the ability to" }, { "docid": "9417392", "title": "", "text": "Seventh Circuit had little difficulty in reversing the district court and concluding that the EPA did have an affirmative duty to treat the States’ inaction as a “constructive” submission, warranting agency response. The court held, We believe that, if a state fails over a long period of time to submit proposed TMDL’s, this prolonged failure may amount to the “constructive submission” by that state of no TMDL’s. Our view of the case is quite simple, and tracks the statutory scheme set up by Congress ... The allegation of the complaint that no TMDL’s are in place, coupled with the EPA’s admission that the states have not made their submissions, raises the possibility that the states have determined that TMDL’s for Lake Michigan are unnecessary ... (T)hen the EPA would be under a duty to either approve or disapprove the “submission.” 741 F.2d at 996-7. The Scott court went on to discount the EPA’s argument that Congress did not intend to establish a statutory duty, saying, None of the EPA’s arguments against the existence of this statutory duty are compelling. The EPA claims that Congress did not intend that the EPA establish TMDL’s if the states chose not to act. We think it unlikely that an important aspect of the federal scheme of water pollution control could be frustrated by the refusal of states to act. This is especially true in light of the short time limits both on a state’s action, and on the EPA’s required reaction to the state's submission.... Id. The Seventh Circuit also noted that, based on its consideration of the importance of water pollution control, the Supreme Court has rejected a similar argument to the one EPA makes here respecting the states’ role in pollution control. E.I. Du Pont De Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). In construing the CWA to grant the EPA broad power, the Supreme Court wrote, “We do not believe that Congress would have failed so conspicuously to provide EPA with the authority needed to achieve the statutory goals.” Id. Congress’ repeated use" }, { "docid": "16812285", "title": "", "text": "v. Fox (“NRDC III”), 93 F.Supp.2d 531, 540 (S.D.N.Y.2000) (constructive submission theory inapplicable because, during the pendency of the lawsuit, New York submitted some TMDLs, formulated a plan for finishing them, and “demonstrated its good-faith interest in collaborating with EPA to bring State’s TMDL program to completion”); Sierra Club, North Star Chapter v. Browner, 843 F.Supp. 1304, 1314 (D.Minn.1993) (finding that constructive submission theory did not apply since Minnesota had “identified TMDLs that it believes should receive the highest priority, ... initiated work on developing those TMDLs, and [ ] implemented some TMDLs”); Idaho Sportsmen’s Coalition v. Browner, 951 F.Supp. 962, 967-68 (W.D.Wash.1996) (finding constructive submission theory inapplicable where Idaho had established three TMDLs and proposed a schedule for completion of additional TMDLs); Sierra Club v. Hankinson, 939 F.Supp. 865, 872 n. 6 (N.D.Ga.1996) (constructive submission theory inapplicable where state had submitted some, albeit inadequate TMDLs). Even in Scott, the first case to address this issue, the Seventh Circuit remanded the case to the district court for a determination whether the state was in the process of submitting any TMDLs even though none had been submitted up until that point. 741 F.2d at 997, n. 11. We agree with the\" Tenth Circuit’s decision in Hayes. California has submitted at least eighteen TMDLs and has established a schedule for completing its remaining TMDLs. Under the constructive submission doctrine, then, these actions on the part of California preclude any finding that the state has “clearly and unambiguously” decided not to submit any TMDLS. See Hayes, 264 F.3d at 1024. In so ruling, we make no determination on California’s past efforts and whether those efforts complied with the TMDL program. Any declaration by this Court that EPA has been in violation of the CWA in the past would only serve as an advisory opinion because there is now no present controversy over past violations for which there is a remedy. See NRDC III, 93 F.Supp.2d at 536 (“Plaintiffs did not, and could not, acquire rights by virtue of EPA’s past failings, and the Court cannot, accordingly provide any relief that goes beyond ensuring" }, { "docid": "16812283", "title": "", "text": "other way] would apparently render it wholly ineffective. There is, of course, a strong presumption against such a construction. Id. at 998. However, the Scott court ultimately remanded the case to the district court instructing it “to proceed as if the states had submitted proposals of no TMDL’s unless [there is] evidence indicating that the states are, or will soon be, in the process of submitting TMDL proposals.” Id. at 997, n. 11. In the present case, the district court interpreted Scott to stand for the proposition that the constructive submission doctrine is viable only when “the state fails to submit any TMDLs and has no plans to remedy this situation.” Because California had submitted some TMDLS between 1994 and the present, the district court held that the constructive submission theory did not apply. Indeed, the district court’s ruling is consistent with how other circuits have interpreted and applied Scott. In Hayes v. Whitman, 264 F.3d 1017 (10th Cir.2001), the Tenth Circuit was confronted with a case that contained facts very similar to those in the present case. In Hayes, the court rejected the contention that the constructive submission theory applied in that case and thus held the EPA did not have a nondiscretionary duty to establish TMDLs for the state. Id. at 1022-24. Oklahoma had submitted a few TMDLs (between three and twenty-nine — although the plaintiffs claimed that none of the TMDLs met all applicable regulatory requirements), and had established a schedule to complete more than 1400 TMDLs by. 2010. Id. at 1022. Based on these facts, the court held that the “necessarily [ ] narrow” constructive submission theory did not apply. Id. at 1024. According to the Tenth Circuit, “[i]t applies only when the state’s actions clearly and unambiguously express a decision” not to submit TMDLs. Id. Because Oklahoma had submitted some TMDLs and was making progress on a schedule to complete its. remaining TMDLs over a twelve-year period, the court could not find that the state had decided not to submit TMDLs. Id. Other courts have reached a similar conclusion. See Natural Resources Defense Council, Inc." }, { "docid": "9417390", "title": "", "text": "1207, 1218-19, 25 L.Ed.2d 442 (1970). “In interpreting statutes, a court’s function is to construe the language so as to give effect to the intent of Congress.” Train, 557 F.2d at 489. The mandatory TMDLs process requires that states identify those waters that are below certain quality limits; establish a priority ranking for those waters; and establish TMDLs in accordance with the priority ranking. 33 U.S.C. § 1313(d)(1). The exact statutory language at issue is as follows: (2) Each State shall submit to the Administrator from time to time, with the first such submission not later than 180 days after the date of publication of the first identification of pollutants ... for his approval, the waters identified and the loads established ... The Administrator shall either approve or disapprove such identification and load not later than 30 days after the date of submission. If the Administrator approves such identification and load, such State shall incorporate them into its current plan ... If the Administrator disapproves such identification and load, he shall not later than 30 days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and ... shall incorporate them into its current plan_ (emphasis added). Id. Plaintiffs’ suit alleges that the State of Alaska’s failure to submit proposed TMDLs over a decade amounts to a “constructive submission” of no TMDLs, thereby triggering a mandatory duty on EPA’s part to promulgate those TMDLs. To this end, plaintiffs rely on the Seventh Circuit decision in Scott v. City of Hammond, Ind., 741 F.2d 992 (7th Cir.1984). In this case directly on point, the court held that the EPA did have a duty to develop TMDLs when the appropriate states failed to comply with the statute. The Scott case involved a citizen suit against the EPA Administrator for failure. to prescribe TMDLs for pollutants discharged into Lake Michigan after Illinois and Indiana failed to do so. Given the lengthy delay from the State’s submissions deadline in 1979, the" }, { "docid": "16812280", "title": "", "text": "either approve or disapprove such identification and load not later than thirty days after the date of submission. If the Administrator approves such identification and load, such State shall incorporate them into its current plan under subsection (e) of this section. If the Administrator disapproves such identification and load, he shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and upon such identification and establishment the State shall incorporate them into its current plan under subsection (e) of this section. 33 U.S.C. § 1313(d)(2) (emphasis added). BayKeeper argues that EPA’s duty under this statute has been triggered by both California’s failure to submit a TMDL between 1980 and 1994 and EPA’s failure to disapprove of several of California’s § 303(d) submissions. We find these arguments unpersuasive. 1. California’s Submission of TMDLs The district court, in construing § 303(d) of the CWA, noted that the statute only requires the EPA to act if it disapproves of a state’s TMDL submission. BayKeeper, however, argues that this same duty is also invoked when a state either fails to submit or submits an inadequate TMDL listing. Although not a novel issue, it is one that nonetheless has received little attention within this Court. However, we note that other courts faced with this same issue have dealt with it using what has been termed the “constructive submission” doctrine. Under this doctrine, a complete failure by a state to submit TMDLs will be construed as a constructive submission of no TMDLs, which in turn triggers the EPA’s nondiscretionary duty to act. The first case to employ this doctrine was the Seventh Circuit’s decision in Scott v. City of Hammond, 741 F.2d 992 (7th Cir.1984). Scott was a citizen-suit against the EPA for failure to prescribe TMDLs for pollutants discharged into Lake Michigan, after Illinois and Indiana had failed to do so. Id. at 996-97. Because of the lengthy absence of any state submissions, the Seventh Circuit" }, { "docid": "16812286", "title": "", "text": "process of submitting any TMDLs even though none had been submitted up until that point. 741 F.2d at 997, n. 11. We agree with the\" Tenth Circuit’s decision in Hayes. California has submitted at least eighteen TMDLs and has established a schedule for completing its remaining TMDLs. Under the constructive submission doctrine, then, these actions on the part of California preclude any finding that the state has “clearly and unambiguously” decided not to submit any TMDLS. See Hayes, 264 F.3d at 1024. In so ruling, we make no determination on California’s past efforts and whether those efforts complied with the TMDL program. Any declaration by this Court that EPA has been in violation of the CWA in the past would only serve as an advisory opinion because there is now no present controversy over past violations for which there is a remedy. See NRDC III, 93 F.Supp.2d at 536 (“Plaintiffs did not, and could not, acquire rights by virtue of EPA’s past failings, and the Court cannot, accordingly provide any relief that goes beyond ensuring EPA’s present compliance with statutory mandates”). Accordingly, as we must look only at EPA’s present duty and whether it has been breached, we need not make a broad, generic determination of the point in time at which a state’s inaction may be deemed a constructive submission. 2. EPA’s Failure to Disapprove of California’s § S0S(d) Submissions. From 1980 through 1991, California made several 303(d) submissions that listed WQLSs. However, as California did not include TMDLs in those submissions, BayKeeper argues that the submissions were incomplete and should have been disapproved by the EPA. We disagree. Subsection 303(d)(1)(A) requires that each state identify those waters within its boundaries for which the effluent limitations required by the statute are not stringent enough to implement the water quality standard applicable to such waters. The state is to establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters. This identification produces the WQLSs for the waters, sometimes referred to as the § 303(d) list. Subsection" }, { "docid": "6771564", "title": "", "text": "... priority list, the Court is of the view that the State has not ‘refused’ to act, and EPA therefore is under no duty to declare a ‘constructive submission’ of inadequate TMDLs by New York.”); Idaho Sportsmen’s Coalition v. Browner, 951 F.Supp. 962, 968 (W.D.Wash.1996) (noting that while Idaho had submitted only two TMDLs and its schedule for future submissions was inadequate, “a ‘constructive submission’ has not yet occurred”). As a corollary, the constructive-submission theory is not designed to challenge the timeliness or adequacy of the state’s TMDL submissions, which involve discretionary (rather than nondiscretionary) duties of the EPA. The constructive-submission theory that we accept under the Clean Water Act’s citizen-suit provision is necessarily a narrow one. It applies only when the state’s actions clearly and unambiguously express a decision to submit no TMDL for a particular impaired waterbody. Here, the evidence completely fails to support Plaintiffs’ constructive-submission theory. The uncontradicted evidence is that Oklahoma has submitted a number of TMDLs and is making progress toward completing about 1500 TMDLs over a twelve-year period. In these circumstances, a constructive-submission claim is not viable. Because the only nondiscretionary duty that Plaintiffs can allege is predicated upon a showing that Oklahoma had made a constructive submission of no TMDLs, the district court correctly found that Plaintiffs could not proceed under the Clean Water Act’s citizen-suit provision. We therefore affirm the grant of summary judgment for the EPA on this issue. II. APA Claims Plaintiffs also asserted an APA challenge in their complaints, which the district court dismissed in part and then granted summary judgment on the rest. We may affirm on any grounds supported by the record, even if not relied upon by the district court. United States v. Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir.1994). The only APA challenge explicitly made in the complaints was to the EPA’s failure to fulfill its nondiscretionary duty to develop its own TMDLs after Oklahoma’s constructive submission of no TMDLs. This argument duplicates the one Plaintiffs brought under the Clean Water Act citizen-suit provision. Because review of Plaintiffs’ claim is available under the" }, { "docid": "5636340", "title": "", "text": "to attaining the goals of the Act. Plaintiffs respond that deference to agency expertise is unnecessary and inappropriate because this action involves straightforward application of a statute. If “Congress has directly spoken to the precise question at issue ... the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A. Inc. v. Nat’l Resources Defense Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). If, however, “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2782. Although Section 303(d) does not explicitly address when a state’s inaction becomes a constructive submission requiring EPA action, it clearly places a mandatory duty on the EPA to develop TMDL lists if the state’s lists are inadequate. The Act would be ineffective if a state’s refusal to act would not trigger any EPA action. ACE at 1428; Scott at 997. A state’s failure to develop adequate TMDLs should not thwart Congress’ purposes in drafting Section 303(d). The Administrator’s duty to act following prolonged state inaction is therefore mandatory, not discretionary. In Scott, there were no TMDLs in place for the challenged states, and the Administrator admitted that the states had not made any submissions. Scott at 997. The Seventh Circuit ruled that the district court had to determine whether the states had decided not to submit TMDL proposals. Scott at 997, f.n. 11. There might be reasons to justify inaction by the state and the EPA, but the district court could order the EPA to proceed as if the states had submitted proposals of no TMDL’s unless the EPA promptly comes forward with persuasive evidence indicating that the states are or will soon be, in the process of submitting TMDL proposals or that some factor beyond the scope of the complaint has made TMDL submissions impracticable. Id. In ACE, Alaska’s 1988 Water Quality Report to Congress identified several hundred waterbodies as impaired or threatened" }, { "docid": "3590350", "title": "", "text": "in this lawsuit set forth a specific process for attaining an acceptable water quality level in areas where technology-based methods of combating pollution from specific point sources have proven inadequate. Under the statutory scheme, states are required to identify the specific waters that remain polluted despite the point source controls, and designate them as “water quality limited.” These states are then required to establish a priority ranking for their water quality limited segments, and establish TMDLs, the maximum amount of pollutants a water body can receive daily without violating the state’s water quality standard, according to that ranking. 33 U.S.C. §§ 1313(d)(1)(A), (C). The Act requires the states to develop these lists of water quality limited segments and TMDLs and submit them to the EPA periodically; however, the first such submission was due no later than June 26, 1979. Upon receipt of the state’s listings, the CWA requires the EPA to review the state’s submissions within 30 days and either approve or disapprove them. If the EPA disapproves of the state’s identification of water quality limited segments or its listing of TMDLs, the agency must establish its own list of water quality limited segments and TMDLs within 30 days. 33 U.S.C. § 1313(d)(2). The record before the district court showed that the State of Alaska had never submitted any TMDLs to the EPA and that the EPA had done nothing to establish any TMDLs. Relying' on the Seventh Circuit’s decision in Scott v. City of Hammond, 741 F.2d 992 (7th Cir.1984) (cited with approval in City of Las Vegas v. Clark County Nevada, 755 F.2d 697, 703-04 (9th Cir.1985)), the district court held that the State of Aaska’s failure to submit the TMDLs for over a decade amounted to a “constructive submission” of “no TMDLs,” thereby triggering a mandatory duty on the EPA’s part to promulgate TMDLs. 762 F.Supp. at 1426-29. Rejecting the EPA’s contention that its duty was not “mandatory,” the district court pointed out that Congress’ repeated use of the term “shall” in section 303(d) clearly places a mandatory duty upon the EPA to take affirmative action after" }, { "docid": "16812281", "title": "", "text": "only requires the EPA to act if it disapproves of a state’s TMDL submission. BayKeeper, however, argues that this same duty is also invoked when a state either fails to submit or submits an inadequate TMDL listing. Although not a novel issue, it is one that nonetheless has received little attention within this Court. However, we note that other courts faced with this same issue have dealt with it using what has been termed the “constructive submission” doctrine. Under this doctrine, a complete failure by a state to submit TMDLs will be construed as a constructive submission of no TMDLs, which in turn triggers the EPA’s nondiscretionary duty to act. The first case to employ this doctrine was the Seventh Circuit’s decision in Scott v. City of Hammond, 741 F.2d 992 (7th Cir.1984). Scott was a citizen-suit against the EPA for failure to prescribe TMDLs for pollutants discharged into Lake Michigan, after Illinois and Indiana had failed to do so. Id. at 996-97. Because of the lengthy absence of any state submissions, the Seventh Circuit concluded that the EPA had an affirmative duty to treat the states’ inactions as a “constructive submission,” warranting the EPA’s response under § 303(d)(2). Id. The court held, We believe that, if a state fails over a long period of time to submit proposed TMDL’s, this prolonged failure may amount to the “constructive submission” by that state of no TMDL’s. Our view of the case is quite simple, and tracks the statutory scheme set up by Congress .... The allegation of the complaint that no TMDL’s are in place, coupled with the EPA’s admission that the states have not made their submissions, raises the possibility that the states have determined that TMDL’s for Lake Michigan are unnecessary.... [T]hen the EPA would be under a duty to either approve'or disapprove the “submission.” Id. The Scott court also reasoned that We cannot allow the states’ refusal to act to defeat the intent of Congress that TMDL’s be established promptly — in accordance with the timetable provided in the statute. In addition, to construe the relevant statute [any" }, { "docid": "16812282", "title": "", "text": "concluded that the EPA had an affirmative duty to treat the states’ inactions as a “constructive submission,” warranting the EPA’s response under § 303(d)(2). Id. The court held, We believe that, if a state fails over a long period of time to submit proposed TMDL’s, this prolonged failure may amount to the “constructive submission” by that state of no TMDL’s. Our view of the case is quite simple, and tracks the statutory scheme set up by Congress .... The allegation of the complaint that no TMDL’s are in place, coupled with the EPA’s admission that the states have not made their submissions, raises the possibility that the states have determined that TMDL’s for Lake Michigan are unnecessary.... [T]hen the EPA would be under a duty to either approve'or disapprove the “submission.” Id. The Scott court also reasoned that We cannot allow the states’ refusal to act to defeat the intent of Congress that TMDL’s be established promptly — in accordance with the timetable provided in the statute. In addition, to construe the relevant statute [any other way] would apparently render it wholly ineffective. There is, of course, a strong presumption against such a construction. Id. at 998. However, the Scott court ultimately remanded the case to the district court instructing it “to proceed as if the states had submitted proposals of no TMDL’s unless [there is] evidence indicating that the states are, or will soon be, in the process of submitting TMDL proposals.” Id. at 997, n. 11. In the present case, the district court interpreted Scott to stand for the proposition that the constructive submission doctrine is viable only when “the state fails to submit any TMDLs and has no plans to remedy this situation.” Because California had submitted some TMDLS between 1994 and the present, the district court held that the constructive submission theory did not apply. Indeed, the district court’s ruling is consistent with how other circuits have interpreted and applied Scott. In Hayes v. Whitman, 264 F.3d 1017 (10th Cir.2001), the Tenth Circuit was confronted with a case that contained facts very similar to those in" }, { "docid": "6771563", "title": "", "text": "required TMDL for a given impaired waterbody. See id. at 997 (noting that the complaint “raises the possibility that the states have determined ” that TMDLs are not needed (emphasis added)). If a state has submitted or soon plans to submit TMDLs for its impaired waterbodies, the constructive-submission analysis would be factually inapplicable. See, e.g., S.F. Baykeeper, Inc. v. Browner, 147 F.Supp.2d 991, 1002 (N.D.Cal.2001) (“California and the EPA have both been doing something about TMDLs, albeit not as rapidly as contemplated by the passage of the CWA.... The record does not support plaintiffs’ contention that there has been a constructive submission of no TMDLs.”); Sierra Club v. Hankinson, 939 F.Supp. 865, 872 n. 6 (N.D.Ga.1996) (“The Court does not find the constructive submission analysis to be appropriate for this case because Georgia has made some TMDL submissions, albeit totally inadequate.” (emphasis in original)); cf. NRDC v. Fox, 93 F.Supp.2d 581, 542 (S.D.N.Y.2000) (“[S]o long as New York continues to participate actively and meaningfully in the effort to promulgate TMDLs for the waterbodies on its ... priority list, the Court is of the view that the State has not ‘refused’ to act, and EPA therefore is under no duty to declare a ‘constructive submission’ of inadequate TMDLs by New York.”); Idaho Sportsmen’s Coalition v. Browner, 951 F.Supp. 962, 968 (W.D.Wash.1996) (noting that while Idaho had submitted only two TMDLs and its schedule for future submissions was inadequate, “a ‘constructive submission’ has not yet occurred”). As a corollary, the constructive-submission theory is not designed to challenge the timeliness or adequacy of the state’s TMDL submissions, which involve discretionary (rather than nondiscretionary) duties of the EPA. The constructive-submission theory that we accept under the Clean Water Act’s citizen-suit provision is necessarily a narrow one. It applies only when the state’s actions clearly and unambiguously express a decision to submit no TMDL for a particular impaired waterbody. Here, the evidence completely fails to support Plaintiffs’ constructive-submission theory. The uncontradicted evidence is that Oklahoma has submitted a number of TMDLs and is making progress toward completing about 1500 TMDLs over a twelve-year period. In" }, { "docid": "9417400", "title": "", "text": "has not addressed the precise question at issue, the Court may not simply impose its own construction on the statute; it must determine whether the agency’s answer is based on a permissible construction of the statute. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). The court finds here that Congress has addressed the question at issue. Section 303(d) expressly requires the EPA to step into the states’ shoes if their TMDL submissions or lists of water quality limited segments are inadequate. It is consistent to conclude that the “inadequacy” of a submission includes deliberate, silent inaction. There is clear legislative history and judicial support for strong enforcement of the CWA. Rather than construing EPA’s mandatory duties in an overly narrow manner, traditional statutory interpretation directs that the court give life to the spirit of the Act. The EPA’s interpretation of § 303(d) puts the TMDL process in “administrative purgatory”, to use another court’s phrase , pending the agency’s eventual review of the state’s inaction. The court finds this unreasonable, illogical, and inconsistent with the CWA’s purpose. “State inaction amounting to a refusal to act should not stand in the way of successfully achieving the goals of federal anti-pollution policy.” Scott, 741 F.2d at 998. CONCLUSION NOW, THEREFORE, plaintiffs’ motion for partial summary judgment is GRANTED. The court finds that § 303(d) of the CWA does set out a nondiscretionary duty on the part of the EPA for promulgation of TMDLs in the face of state inaction. The court need not make a broad, generic determination of the point in time at which a state’s inaction may be deemed a “constructive submission.” However, there could hardly be a more compelling case for finding a “constructive submission” than under the facts of this specific case. The court therefore finds that the State of Alaska has effectively created a “constructive submission” of no TMDLs over the past eleven years. The EPA is required, therefore, to initiate its own process of promulgating TMDLs, including any and all necessary steps needed to effectively identify the appropriate" }, { "docid": "9417391", "title": "", "text": "days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and ... shall incorporate them into its current plan_ (emphasis added). Id. Plaintiffs’ suit alleges that the State of Alaska’s failure to submit proposed TMDLs over a decade amounts to a “constructive submission” of no TMDLs, thereby triggering a mandatory duty on EPA’s part to promulgate those TMDLs. To this end, plaintiffs rely on the Seventh Circuit decision in Scott v. City of Hammond, Ind., 741 F.2d 992 (7th Cir.1984). In this case directly on point, the court held that the EPA did have a duty to develop TMDLs when the appropriate states failed to comply with the statute. The Scott case involved a citizen suit against the EPA Administrator for failure. to prescribe TMDLs for pollutants discharged into Lake Michigan after Illinois and Indiana failed to do so. Given the lengthy delay from the State’s submissions deadline in 1979, the Seventh Circuit had little difficulty in reversing the district court and concluding that the EPA did have an affirmative duty to treat the States’ inaction as a “constructive” submission, warranting agency response. The court held, We believe that, if a state fails over a long period of time to submit proposed TMDL’s, this prolonged failure may amount to the “constructive submission” by that state of no TMDL’s. Our view of the case is quite simple, and tracks the statutory scheme set up by Congress ... The allegation of the complaint that no TMDL’s are in place, coupled with the EPA’s admission that the states have not made their submissions, raises the possibility that the states have determined that TMDL’s for Lake Michigan are unnecessary ... (T)hen the EPA would be under a duty to either approve or disapprove the “submission.” 741 F.2d at 996-7. The Scott court went on to discount the EPA’s argument that Congress did not intend to establish a statutory duty, saying, None of the EPA’s arguments against the existence of this" }, { "docid": "16812284", "title": "", "text": "the present case. In Hayes, the court rejected the contention that the constructive submission theory applied in that case and thus held the EPA did not have a nondiscretionary duty to establish TMDLs for the state. Id. at 1022-24. Oklahoma had submitted a few TMDLs (between three and twenty-nine — although the plaintiffs claimed that none of the TMDLs met all applicable regulatory requirements), and had established a schedule to complete more than 1400 TMDLs by. 2010. Id. at 1022. Based on these facts, the court held that the “necessarily [ ] narrow” constructive submission theory did not apply. Id. at 1024. According to the Tenth Circuit, “[i]t applies only when the state’s actions clearly and unambiguously express a decision” not to submit TMDLs. Id. Because Oklahoma had submitted some TMDLs and was making progress on a schedule to complete its. remaining TMDLs over a twelve-year period, the court could not find that the state had decided not to submit TMDLs. Id. Other courts have reached a similar conclusion. See Natural Resources Defense Council, Inc. v. Fox (“NRDC III”), 93 F.Supp.2d 531, 540 (S.D.N.Y.2000) (constructive submission theory inapplicable because, during the pendency of the lawsuit, New York submitted some TMDLs, formulated a plan for finishing them, and “demonstrated its good-faith interest in collaborating with EPA to bring State’s TMDL program to completion”); Sierra Club, North Star Chapter v. Browner, 843 F.Supp. 1304, 1314 (D.Minn.1993) (finding that constructive submission theory did not apply since Minnesota had “identified TMDLs that it believes should receive the highest priority, ... initiated work on developing those TMDLs, and [ ] implemented some TMDLs”); Idaho Sportsmen’s Coalition v. Browner, 951 F.Supp. 962, 967-68 (W.D.Wash.1996) (finding constructive submission theory inapplicable where Idaho had established three TMDLs and proposed a schedule for completion of additional TMDLs); Sierra Club v. Hankinson, 939 F.Supp. 865, 872 n. 6 (N.D.Ga.1996) (constructive submission theory inapplicable where state had submitted some, albeit inadequate TMDLs). Even in Scott, the first case to address this issue, the Seventh Circuit remanded the case to the district court for a determination whether the state was in the" } ]

[ { "docid": "3367016", "title": "", "text": "always reasonable.” McGehee, 697 F.2d at 1102. Although specific circumstances in some agencies may render an across-the-board rule reasonable, the Department has made no showing that warrants such an approach in its case. The Department advances two justifications for its cut-off policy as applied to Public Citizen’s June request. It first argues that although the use of a “later cut-off date” might have resulted in the retrieval of more documents, Public Citizen would have had to “wait a longer time.” Appellees’ Br. at 34. As noted above, however, McGehee rejected a similar argument advanced by the CIA, 697 F.2d at 104-05 n. 41, and we find the claim likewise unsubstantiated here. Because the Department has a large “backlog” of FOIA requests, Grafeld Decl. II ¶ 2, and because Public Citizen has no way of knowing whether the Department created new responsive documents after the date of its June request, the policy’s net result is to increase processing time by forcing Public Citizen to file multiple FOIA requests to obtain documents that the Department would have released in response to a single request had it used a later cutoff date. Second, the Department points out that because the June request was not limited to a “central records system,” the Department must “task various offices and components” to search for responsive records. Since searches may take place in “different components ... at vastly different times for the same FOIA request,” the Department argues, a “date-of-request” cut-off policy avoids the “confusion of having multiple cut-off dates on a given request, and provides requesters with a clear basis for determining whether a subsequent request might be necessary.” Appellees’ Br. at 35-36. Again, we rejected just such a claim in McGehee, hypothesizing an alternative procedure that would utilize a “cutoff date much later than the time of the original request ... [and] result[ ] in a much fuller search and disclosure.” 697 F.2d at 1104. The same is true here: Because the Central File is typically the component searched last — it possesses the longest queue — and because, as the Department concedes, the Central" } ]

[ { "docid": "3367012", "title": "", "text": "said in Better Government, “[w]here ... the agency has stated that the action in question governs and will continue to govern its decisions, such action must be viewed as final in our analysis of ripeness.” 780 F.2d at 93. Here, the Department sent Public Citizen a letter expressly saying that it considered the date of the letter to be the “cut-off’ date, thus creating a controversy ripe for judicial review. Public Citizen argues that the cut-off policy is unreasonable because it forces the organization to “periodically ... resubmit the identical request in order to get more recent records.” Appellant’s Opening Br. at 30. In support of this argument, Public Citizen relies on our decision in McGehee v. CIA 697 F.2d 1095 (D.C.Cir.1983). In that case, a freelance journalist filed a FOIA request with the Central Intelligence Agency seeking all documents relating to the infamous Jonestown Massacre. Id. Following its usual practice, the CIA’s Information and Privacy Division “tasked” the divisions most likely to possess relevant documents. Id. at 1098. Though the journalist made the initial request in December 1978, by November 1980, almost two years later, the CIA had neither released any documents nor provided any meaningful information about the status of the request. Id. at 1099. The journalist sued, claiming that the CIA’s use of a date-of-request cut-off policy was unreasonable. Id. We began by rejecting the CIA’s contention that because the “language in ... FOIA and authoritative case law interpreting the statute establishes that the use of a time-of-request cut-off is always reasonable,” we should “decide [the] question from a generic standpoint.” Id. at 1102. In particular, we rejected the CIA’s reliance on cases holding that FOIA does not require “an agency ... [to] continuously ... update its responses,” reasoning that “the question presented in this case is whether, when an agency first releases documents ... it may use a [date-of-request] cut-off.” Id. “That an agency has no obligation, after it has once responded fully to a FOIA request,” we noted, “has little bearing on the issue before us.” Id. We then considered the reasonableness of the date-of-request" }, { "docid": "944049", "title": "", "text": "supplemental search to find it — does not render its search efforts inadequate. Eggleston Decl. 8; see also Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir.1986) (clarifying that “it would be unreasonable to expect even the most exhaustive search to uncover every responsive file”). Considering the breadth of NACCB’s FOIA request, USCIS conducted a good faith search for responsive documents that was reasonably calculated to uncover responsive documents. When determining if the use of a search cut-off date was reasonable, this Circuit has held that an “agency bears the burden of establishing that any limitations on the search it undertakes in a particular case comport with its obligation to conduct a reasonably thorough investigation.” McGehee v. C.I.A., 697 F.2d 1095, 1101 (D.C.Cir.1983). While “concluding] that neither the terms of the statute nor the case law interpreting them supports a claim that the use of a time-of-request cutoff date is always proper,” the D.C. Circuit cautioned that courts should look to the facts of a case to evaluate the reasonableness of an agency’s conduct. In Defense of Animals v. Nat’l Insts. of Health, 543 F.Supp.2d 83, 99 (D.D.C.2008) (quoting McGehee, 697 F.2d at 1102). In this instance, USCIS failed to notify NACCB of its search cut-off policy. Indeed, nothing in USCIS’s response to NACCB’s FOIA request mentions a search cut-off date or the date USCIS used to process the request. USCIS Re-sponse 1-3. Furthermore, while USCIS argues that its acknowledgement letter directed NACCB’s attention to 6 C.F.R. § 5, the letter only directed NACCB’s attention to 6 C.F.R. § 5.3, which describes the payment process for FOIA requests. Id. at 2. For these reasons, NACCB argues that the court should require USCIS to supplement its search because NACCB “did not have notice as to the cut-off date, either by letter to ... [NACCB] or by agency regulation.” Pl.’s Cross-Mot. 13. The Court disagrees. Although USCIS failed to specifically notify NACCB of its search cut-off date policy, the facts of this case support US-CIS’s contention that it conducted an adequate search. As in Defense of Animals, USCIS searched for records shortly after" }, { "docid": "14846498", "title": "", "text": "as follows: It is well settled in Freedom of Information Act cases as in any others that “[s]ummary judgment may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law.” ... [Moreover, the] “ ‘inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.’ ” Church of Scientology, 610 F.2d at 836 (footnotes omitted). Thus, for the CIA to have properly prevailed in the case at bar, it must have shown that no material fact relevant to the reasonableness of its use of a time-of-request cut-off date was in dispute and that the evidence established that the procedure employed was reasonable “as a matter of law.” In deciding whether the agency had made such a showing, the District Court was entitled to rely upon affidavits submitted by the agency, describing its search procedures and explaining why a more thorough investigation would have been unduly burdensome. Id. But such affidavits would suffice only if they were relatively detailed, nonconclusory and not impugned by evidence in the record of bad faith on the part of the agency. Id. B. The Legality of the Agency’s Rule Adopting A Time-of-Request Cut-off Date In light of the foregoing principles, we must now determine whether the District Court fairly could have concluded that the CIA’s decision to limit its search to documents in its possession as of the date of McGehee’s finalized request was consistent with its statutory obligations. The agency would have us decide this question from a generic standpoint; it argues that language in the FOIA and authoritative case law interpreting the statute establish that the use of a time-of-request cut-off date is always reasonable. However, we are convinced that none of the arguments advanced by the agency to support this sweeping claim survives scrutiny. The CIA first points to the statutory provision requiring that the materials sought by a FOIA request be “reasonably describe[d].” That provision pertains to the subject matter," }, { "docid": "14846499", "title": "", "text": "unduly burdensome. Id. But such affidavits would suffice only if they were relatively detailed, nonconclusory and not impugned by evidence in the record of bad faith on the part of the agency. Id. B. The Legality of the Agency’s Rule Adopting A Time-of-Request Cut-off Date In light of the foregoing principles, we must now determine whether the District Court fairly could have concluded that the CIA’s decision to limit its search to documents in its possession as of the date of McGehee’s finalized request was consistent with its statutory obligations. The agency would have us decide this question from a generic standpoint; it argues that language in the FOIA and authoritative case law interpreting the statute establish that the use of a time-of-request cut-off date is always reasonable. However, we are convinced that none of the arguments advanced by the agency to support this sweeping claim survives scrutiny. The CIA first points to the statutory provision requiring that the materials sought by a FOIA request be “reasonably describe[d].” That provision pertains to the subject matter, location and form of materials sought by a request, not to the times at which responsive documents are acquired. The CIA next directs our attention to two cases holding that an agency has no duty continuously to update its responses to a FOIA request. The doctrine tentatively established by those decisions is inapposite. The question presented in this case is whether, when an agency first releases documents to a requester, it may use as a cut-off date the time of his original demand. That an agency has no obligation, after it has once responded fully to a FOIA request, “to ‘run what might amount to a loose-leaf service’ ” for the benefit of the applicant has little bearing on the issue before us. Finally, the CIA points to case law suggesting that one cannot modify a FOIA request in mid-litigation. Those decisions establish, at most, that a requester is not permitted to alter or refine the subjects to which he originally directed attention; they have nothing to do with the legality of the use of" }, { "docid": "944066", "title": "", "text": "42 pages, making minor redactions on eight pages pursuant to Exemption 5 and withholding one page pursuant to Exemption 7(a). Deck Brian Pasternak 1, Ex. 2 Def.’s Mot. Summ. J., June 24, 2010, ECF No. 16-2 (“Deck Pasternak”). The Court finds that DOL properly redacted the nine pages in dispute pursuant to FOIA exemptions 5 and 7(a) respectively. . A search cut-off date refers to the date that an agency begins its search for responsive documents. Agencies typically do not wait until a document is “due for processing” to search for documents; rather, agencies use the date the search commenced, per agency policy. Supp. Eggleston 3. This practice ensures “that, to the maximum extent possible, responsive documents are searched for, located, transmitted to the NRC and available to the NRC for processing when the request comes up the queue for processing.” Supp. Eggleston 2. Following this policy, FDNS and SCOPS completed their searches for responsive material in April and May 2009, respectively. Id. at 3. . NACCB disputes USCIS’s withholding of documents numbered 1, 2, and 19, alleging that these are publicly available documents. Pl.'s Cross-Mot. 10. Notwithstanding the fact that these documents were properly withheld in accordance with FOIA exemption 7(e), see infra IV C, they were never \"officially released” by USCIS. A document is considered \"officially released\" when the information requested: 1) is as specific as the information previously released; 2) matches the information previously disclosed; and 3) is already public knowledge via an official and documented disclosure. Afshar v. Dep’t of State, 702 F.2d 1125, 1133 (D.C.Cir.1983). Here, none of the specified documents meet this exacting standard, as there are “substantive differences” between the documents and previously disclosed information. Supp. Eggleston 3. Thus, NACCB's argument is unpersuasive. . The parties dispute the applicability of the deliberative process privilege to documents numbered 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 17, 21, 22, and 23 as well as documents numbered 35, 37, 41, 42, 44, 46, 52, and 53 on the Vaughn Index. (The second list of documents corresponds to documents referred to the DOL for" }, { "docid": "14846502", "title": "", "text": "that it would be exceedingly difficult to conduct its processing of FOIA requests on any other basis. In the affidavit of John Bacon submitted to the District Court, in its brief to this court, and in oral argument, the agency has consistently maintained that uniform use of a time-of-request cut-off date is essential to avoid an “administrative nightmare.” To support this claim, the agency points to the benefits of “precispon]” (the value of having a single cut-off date that all agency divisions know in advance), the “confusion” that might be engendered by different agency components using different cut off dates (e.g., each division using the date at which it commenced searching for documents), the alleged cost and inconvenience to the agency of conducting the successive, duplicative searches that might be necessary if the date of a final response or the date of litigation were employed as a cutoff date, and the disruption of the agency’s fee schedules that would accompany the use of anything other than its present procedure. In the absence of more detailed substantiation, these claims strike us as either unpersuasive or irrelevant. Indeed, alternative procedures, without the flaws of the time-of-request cut-off policy and without any real potential for the administrative nightmares alleged by appellee, readily come to mind. The following procedure is an example: Sample Procedure Applying a Reasonable “Cut-off” Date to a FOIA Search Soon after the CIA first receives a request, IPD “tasks” divisions of the agency it considers likely to have access to responsive documents. Those divisions determine whether they have any such materials and so inform IPD. IPD then notifies the requester that the agency possesses some relevant documents and will process his request as soon as it has completed processing all requests it received earlier. When the request nears the head of the “queue,” IPD instructs each agency division that it thinks might possess relevant records to conduct, at that time, a thorough search for all responsive documents in its possession, to retrieve identified records forthwith, and to submit them to the central office for evaluation by persons able to determine" }, { "docid": "3367014", "title": "", "text": "cut-off policy as applied to the journalist’s particular FOIA request. The CIA defended the policy as necessary to avoid an “administrative nightmare.” Id. at 1103. “Confusion,” the CIA argued, “might be engendered by different agency components using different cut-off dates,” fee schedules would be “disrupt[ed]” without such a policy, and it would experience increased costs from the “successive ... searches that might be necessary if the date of a final response or the date of litigation were employed as a cut-off.” Id. at 1103-04 (internal quotation marks omitted). The CIA also claimed that it needed the date-of-request cut-off policy to preserve the “expeditious[ ] processing [of] relatively simple requests.” Id. at 1104 n. 41. Finding the CIA’s arguments “either unpersuasive or irrelevant” in the “absence of more detailed substantiation,” we hypothesized an “alternative proeedure[ ] without the flaws of the [date]-of-request cut-off policy and without any real potential for ■... administrative nightmares,” namely, that at minimum, the CIA could use as the cut-off date the date on which the Information and Privacy Division determined which components to “task.” Id. at 1103-04. According to Public Citizen, McGehee controls this case and requires that we find the State Department’s cut-off policy unreasonable both generally and as applied to the June request. The Department urges us not to address these questions but instead to remand to the district court, which because it dismissed Public Citizen’s claims as unripe, never reached the merits of the McGehee issue. We see no reason to remand. Not only was the Department aware of McGehee, but given the procedural posture of this case — cross-motions for summary judgment — it had every opportunity to justify its policy. See Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032-33 (D.C.Cir.1988) (holding that court must enter summary judgment against nonmovant who bears the burden of production and fails to meet that burden). We need not linger long over the Department’s attempts to justify its reflexive application of the cut-off policy to every request regardless of circumstances. McGehee expressly rejected the proposition that under FOIA, the “use of a time-of-request cut-off date is" }, { "docid": "3366998", "title": "", "text": "responsive information. I. The State Department processes FOIA requests in four stages. During the first stage, it mails a letter to the requester acknowledging receipt and assigning an identification number. Grafeld Decl. II ¶ 18. This initial letter also informs the requester that the “cut-off date ... is the date of the requester’s letter” and that “no documents ... originat[ing] after the date of [the] letter will be retrieved.” Sforza Decl. ¶ 6. During the second stage, the Department’s Statutory Compliance & Research Division determines “which offices, overseas posts, or other records systems within the Department may reasonably be expected to contain the information requested.” Grafeld Decl. II ¶ 23. The Department then “task[s]” these various components to search for responsive documents. Id. ¶ 28. The speed at which the tasked component completes a search depends largely on available personnel, the nature of the request and the number of outstanding requests. “By far” the most frequently tasked component is the Department’s Central Foreign Policy File, a centralized automated records system containing the “most comprehensive authoritative compilation of documents,” including documents “that establish, discuss or define foreign policy,” as well as “official record, copies of incoming and outgoing Department communications.” Id. ¶ 24. Consequently, the Central File has the “longest queue” of any Department component. Id. ¶ 46. During the third phase of FOIA request processing, the Department reviews the retrieved documents to determine whether it should withhold any, or portions thereof, pursuant to one of FOIA’s nine exemptions. During the final phase, the Department copies the documents, redacts classified material and releases them to the requester. In April 1998, appellant Public Citizen, a non-profit, public interest organization “dedicated to the study and promotion of public health and ... consumer welfare,” Appellant’s Opening Br. at ii, sent a FOIA request to the Department asking for records describing its “current system for managing word processing files ... and electronic mail messages,” as well as “disposition schedule^] submitted to the National Archives concerning the transfer or disposal” of these materials. Grafeld Decl. I ¶4. Three months later, the Department released seven documents in" }, { "docid": "3367015", "title": "", "text": "components to “task.” Id. at 1103-04. According to Public Citizen, McGehee controls this case and requires that we find the State Department’s cut-off policy unreasonable both generally and as applied to the June request. The Department urges us not to address these questions but instead to remand to the district court, which because it dismissed Public Citizen’s claims as unripe, never reached the merits of the McGehee issue. We see no reason to remand. Not only was the Department aware of McGehee, but given the procedural posture of this case — cross-motions for summary judgment — it had every opportunity to justify its policy. See Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032-33 (D.C.Cir.1988) (holding that court must enter summary judgment against nonmovant who bears the burden of production and fails to meet that burden). We need not linger long over the Department’s attempts to justify its reflexive application of the cut-off policy to every request regardless of circumstances. McGehee expressly rejected the proposition that under FOIA, the “use of a time-of-request cut-off date is always reasonable.” McGehee, 697 F.2d at 1102. Although specific circumstances in some agencies may render an across-the-board rule reasonable, the Department has made no showing that warrants such an approach in its case. The Department advances two justifications for its cut-off policy as applied to Public Citizen’s June request. It first argues that although the use of a “later cut-off date” might have resulted in the retrieval of more documents, Public Citizen would have had to “wait a longer time.” Appellees’ Br. at 34. As noted above, however, McGehee rejected a similar argument advanced by the CIA, 697 F.2d at 104-05 n. 41, and we find the claim likewise unsubstantiated here. Because the Department has a large “backlog” of FOIA requests, Grafeld Decl. II ¶ 2, and because Public Citizen has no way of knowing whether the Department created new responsive documents after the date of its June request, the policy’s net result is to increase processing time by forcing Public Citizen to file multiple FOIA requests to obtain documents that the Department would have" }, { "docid": "944050", "title": "", "text": "of Animals v. Nat’l Insts. of Health, 543 F.Supp.2d 83, 99 (D.D.C.2008) (quoting McGehee, 697 F.2d at 1102). In this instance, USCIS failed to notify NACCB of its search cut-off policy. Indeed, nothing in USCIS’s response to NACCB’s FOIA request mentions a search cut-off date or the date USCIS used to process the request. USCIS Re-sponse 1-3. Furthermore, while USCIS argues that its acknowledgement letter directed NACCB’s attention to 6 C.F.R. § 5, the letter only directed NACCB’s attention to 6 C.F.R. § 5.3, which describes the payment process for FOIA requests. Id. at 2. For these reasons, NACCB argues that the court should require USCIS to supplement its search because NACCB “did not have notice as to the cut-off date, either by letter to ... [NACCB] or by agency regulation.” Pl.’s Cross-Mot. 13. The Court disagrees. Although USCIS failed to specifically notify NACCB of its search cut-off date policy, the facts of this case support US-CIS’s contention that it conducted an adequate search. As in Defense of Animals, USCIS searched for records shortly after receiving the FOIA request, but it delayed sending responsive material to NACCB for eleven months. 543 F.Supp.2d at 99. The Court in Defense of Animals explained that the defendants’ explanation of their use of a search cut-off policy failed as they did not attempt “to sustain their burden of demonstrating the reasonableness of this cut-off date other than relying on unspecified agency policy.” Id. Although USCIS also relies on agency policy for support, it conducted supplemental searches when it realized that its search did not include records pertaining to several categories of NACCB’s request. Eggleston Decl. 8. Additionally, USCIS searched various agencies for missing materials and assigned a new control number to those documents. Id. Furthermore, USCIS did not use the date of the FOIA request as its search cutoff date, rather it used a later date, resulting in a “much fuller search and disclo sure” for NACCB. McGehee, 697 F.2d at 1104. While in the future USCIS would be wise to expressly acknowledge the use of a search cut-off date policy in its response" }, { "docid": "14846503", "title": "", "text": "substantiation, these claims strike us as either unpersuasive or irrelevant. Indeed, alternative procedures, without the flaws of the time-of-request cut-off policy and without any real potential for the administrative nightmares alleged by appellee, readily come to mind. The following procedure is an example: Sample Procedure Applying a Reasonable “Cut-off” Date to a FOIA Search Soon after the CIA first receives a request, IPD “tasks” divisions of the agency it considers likely to have access to responsive documents. Those divisions determine whether they have any such materials and so inform IPD. IPD then notifies the requester that the agency possesses some relevant documents and will process his request as soon as it has completed processing all requests it received earlier. When the request nears the head of the “queue,” IPD instructs each agency division that it thinks might possess relevant records to conduct, at that time, a thorough search for all responsive documents in its possession, to retrieve identified records forthwith, and to submit them to the central office for evaluation by persons able to determine whether any material is exempt. Substantive review follows promptly and all nonexempt material is released. We do not offer the foregoing Sample as a directive to the agency, a procedure with which it is henceforth bound to comply. Nor do we mean to endorse a procedure fraught with excessive time delays. In designing the system, we have taken for granted the fact that the CIA is experiencing inordinate delays in processing FOIA requests; a different procedure might be more suitable for an agency that responds to requests on a relatively current basis. In sum, we set forth the Sample Procedure merely to indicate that one can easily imagine a system that incorporates a cut-off date much later than the time of the original request, that results in a much fuller search and disclosure than the procedure presently used by the agency, that forecloses the necessity for an excessive number of supplementary demands (see note 42 infra), and that does not appear unduly burdensome, expensive, or productive of “administrative chaos.” It is possible that circumstances unknown" }, { "docid": "944065", "title": "", "text": "as defendant acknowledges that it will not withhold documents 14, 24, 28, 29, 30, and 32 in their entirety and portions of documents 25, 26, and 31 pursuant to the recent Supreme Court decision in Milner v. Dep't of the Navy, - U.S. -, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (holding that Exemption 2 does not shield material on the ground that its “disclosure would significantly risk circumvention of federal agency functions”). . Additionally, the Court will not address NACCB's FOIA Exemption 6 argument because NACCB does not challenge the redactions of personnel information. Pl.'s Cross-Mot. Summ. J. 5, July 26, 2010, ECF No. 18 (\"Pl.’s Cross-Mot.”). . SCOPS informed NRC that it was unable to find responsive documents that corresponded to category 9 of NACCB's FOIA request. Eggleston Deck 8. SCOPS also assigned a new control number— NRC2010019940 — to the documents responsive to category 8 of the request. Id. . NACCB does not dispute DOL's findings in relation to the 42 pages that were directly referred to the agency. DOL released all 42 pages, making minor redactions on eight pages pursuant to Exemption 5 and withholding one page pursuant to Exemption 7(a). Deck Brian Pasternak 1, Ex. 2 Def.’s Mot. Summ. J., June 24, 2010, ECF No. 16-2 (“Deck Pasternak”). The Court finds that DOL properly redacted the nine pages in dispute pursuant to FOIA exemptions 5 and 7(a) respectively. . A search cut-off date refers to the date that an agency begins its search for responsive documents. Agencies typically do not wait until a document is “due for processing” to search for documents; rather, agencies use the date the search commenced, per agency policy. Supp. Eggleston 3. This practice ensures “that, to the maximum extent possible, responsive documents are searched for, located, transmitted to the NRC and available to the NRC for processing when the request comes up the queue for processing.” Supp. Eggleston 2. Following this policy, FDNS and SCOPS completed their searches for responsive material in April and May 2009, respectively. Id. at 3. . NACCB disputes USCIS’s withholding of documents numbered 1, 2," }, { "docid": "476708", "title": "", "text": "Declaration”). Plaintiff argues that “NIH’s time-of-search cut-off date” of February 5, 2004, “is not reasonable.” PL’s Cross Mot. for Summ. J. at 24. “Therefore, as a form of remedy, NIH’s supplemental search for records located at the APF [discussed below] and for the periodic reports should not be date-limited to February 5, 2004.” Id. at 25. “[W]e hold that the agency bears the burden of establishing that any limitations on the search it undertakes in a particular case comport with its obligation to conduct a reasonably thorough investigation. It seems to us clear that the burden of persuasion on this matter is properly imposed on the agency.” McGehee v. C.I.A., 697 F.2d 1095, 1101 (D.C.Cir.1983). While the D.C. Circuit “concluded that neither the terms of the statute nor the case law interpreting them supports a claim that the use of a time-of-request cut-off date is always proper,” it instructs “turning] to the particular facts of the case ... to assess the reasonableness of the agency’s conduct.” Id. at 1101. See also Public Citizen v. Dep’t of State, 276 F.3d 634, 643 (D.C.Cir.2002) (“McGehee expressly rejected the proposition that under FOIA, the ‘use of a time-of-request cut-off date is always reasonable.’ McGe-hee, 697 F.2d at 1102. Although specific circumstances in some agencies may render an across-the-board rule reasonable, the Department has made no showing that warrants such an approach in its case.”). In McGehee, the court concluded that a delay of over two and a half years required further investigation by the district court before the reasonableness of a time-of-request cut-off date for a search could be upheld. While the eleven-month lag between the start of the search and Defendants’ final production of documents to Plaintiff in this case does not strike the Court as presumptively unreasonable, Defendants make no attempt to sustain their burden of demonstrating the reasonableness of this cut-off date other than relying on unspecified agency policy. Defendants never contest in their Opposition to Plaintiffs Cross Motion for Summary Judgment Plaintiffs allegations of unreasonableness. While the court in Public Citizen held that “nothing in this opinion precludes either" }, { "docid": "3367013", "title": "", "text": "request in December 1978, by November 1980, almost two years later, the CIA had neither released any documents nor provided any meaningful information about the status of the request. Id. at 1099. The journalist sued, claiming that the CIA’s use of a date-of-request cut-off policy was unreasonable. Id. We began by rejecting the CIA’s contention that because the “language in ... FOIA and authoritative case law interpreting the statute establishes that the use of a time-of-request cut-off is always reasonable,” we should “decide [the] question from a generic standpoint.” Id. at 1102. In particular, we rejected the CIA’s reliance on cases holding that FOIA does not require “an agency ... [to] continuously ... update its responses,” reasoning that “the question presented in this case is whether, when an agency first releases documents ... it may use a [date-of-request] cut-off.” Id. “That an agency has no obligation, after it has once responded fully to a FOIA request,” we noted, “has little bearing on the issue before us.” Id. We then considered the reasonableness of the date-of-request cut-off policy as applied to the journalist’s particular FOIA request. The CIA defended the policy as necessary to avoid an “administrative nightmare.” Id. at 1103. “Confusion,” the CIA argued, “might be engendered by different agency components using different cut-off dates,” fee schedules would be “disrupt[ed]” without such a policy, and it would experience increased costs from the “successive ... searches that might be necessary if the date of a final response or the date of litigation were employed as a cut-off.” Id. at 1103-04 (internal quotation marks omitted). The CIA also claimed that it needed the date-of-request cut-off policy to preserve the “expeditious[ ] processing [of] relatively simple requests.” Id. at 1104 n. 41. Finding the CIA’s arguments “either unpersuasive or irrelevant” in the “absence of more detailed substantiation,” we hypothesized an “alternative proeedure[ ] without the flaws of the [date]-of-request cut-off policy and without any real potential for ■... administrative nightmares,” namely, that at minimum, the CIA could use as the cut-off date the date on which the Information and Privacy Division determined which" }, { "docid": "944051", "title": "", "text": "receiving the FOIA request, but it delayed sending responsive material to NACCB for eleven months. 543 F.Supp.2d at 99. The Court in Defense of Animals explained that the defendants’ explanation of their use of a search cut-off policy failed as they did not attempt “to sustain their burden of demonstrating the reasonableness of this cut-off date other than relying on unspecified agency policy.” Id. Although USCIS also relies on agency policy for support, it conducted supplemental searches when it realized that its search did not include records pertaining to several categories of NACCB’s request. Eggleston Decl. 8. Additionally, USCIS searched various agencies for missing materials and assigned a new control number to those documents. Id. Furthermore, USCIS did not use the date of the FOIA request as its search cutoff date, rather it used a later date, resulting in a “much fuller search and disclo sure” for NACCB. McGehee, 697 F.2d at 1104. While in the future USCIS would be wise to expressly acknowledge the use of a search cut-off date policy in its response to FOIA requests, its failure to do so in this case does not render its search efforts unreasonable. B. Exemption 5 Under FOIA Exemption 5, the agency is not required to disclose documents that reveal “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Courts interpreting Exemption 5 have “construed this exemption to encompass the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context,” including “materials which would be protected under the attorney-client privilege, the attorney-work privilege, or the executive ‘deliberative process privilege.’ ” Taxation with Representation Fund. v. Internal Revenue Serv., 646 F.2d 666, 676 (D.C.Cir.1981) (quoting Carter, Fullerton, & Hayes, LLC v. Fed. Trade Comm’n, 637 F.Supp.2d. 1, 10 (D.D.C.2009)). NACCB asserts that US-CIS failed to disclose documents under FOIA Exemption 5 pursuant to the deliberative process privilege and the attorney-client privilege. Agencies frequently rely upon the deliberative process privilege when invoking Exemption 5, a privilege that operates" }, { "docid": "16631734", "title": "", "text": "of the CIA’s Search Plaintiff asserted in his early filings, although not in his most recent ones, that he did not receive all the documents to which he is entitled. While plaintiff clearly was not given all responsive documents immediately or even in a timely fashion, the processing of his Privacy Act request now appears to be complete. On February 12, 1996, plaintiff filed a declaration describing 21 categories of materials that he believed had yet to be released to him. See Declaration of Louis J. Blazy (Feb. 12, 1996), Attachment to Pl.’s Motion for Reconsideration and Clarification of the Court’s Jan. 31, 1996 Order. Defendants’ counsel assured the Court on the record on February 28, 1996, that he would personally review plaintiffs request. As a result, the CIA produced many of the missing documents identified by plaintiff and explained why others were not available. See Declaration of Steven A. Cash (“Cash Decl.”) ¶¶ 6(a)-(u) (Mar. 20, 1996), Attachment to Defs.’ Status Report (Mar. 20,1996) (describing in detail how the CIA responded to each of plaintiffs criticisms). In addition, Lee Strickland, the Information and Privacy Coordinator for the CIA, explained that all five CIA directorates, encompassing all CIA components, were instructed to search for responsive records and only two, the Director of Central Intelligence and the Directorates of Administration located any responsive records. See Suppl. Strickland Decl. ¶ 11. In view of these representations and plaintiffs failure to identify any gaps in the adequacy of the search since the March 20 Status Report was filed, the Court finds that the CIA now has conducted an adequate search of its records. B. August 20, 1990 Cutr-Off Date Plaintiff complains that the government inappropriately used August 20, 1990 as the cut-off date for its search. An agency’s use of a cut-off date will be upheld only where it is reasonable. See McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1102-1104 (D.C.Cir.), vacated in part on other grounds, 711 F.2d 1076 (D.C.Cir.1983). Plaintiffs Privacy Act request letter is dated August 13, 1990, and the agency’s response letter, notifying plaintiff that his request would" }, { "docid": "14846501", "title": "", "text": "the time of a request as a temporal limit to a FOIA search. C. The Reasonableness of the Agency’s Procedure in This Instance Having concluded that neither the terms of the statute nor the case law interpreting them supports a claim that the use of a time-of-request cut-off date is always proper, we are compelled to turn to the particular facts of the case before us to assess the reasonableness of the agency’s conduct. MeGehee directs our attention to circumstances that, on their face, east considerable doubt on the merits of the agency’s procedure. The CIA took almost two and one-half years to respond to McGehee’s request. Yet, when it finally released documents, the CIA chose to limit itself to records that originated with and were possessed by the agency during the first 35 days following the Jonestown Tragedy. Were these facts all that appeared in the record, we would be very hard pressed to sustain the agency’s actions. The CIA attempts to dispel the skepticism to which the foregoing circumstances give rise by arguing that it would be exceedingly difficult to conduct its processing of FOIA requests on any other basis. In the affidavit of John Bacon submitted to the District Court, in its brief to this court, and in oral argument, the agency has consistently maintained that uniform use of a time-of-request cut-off date is essential to avoid an “administrative nightmare.” To support this claim, the agency points to the benefits of “precispon]” (the value of having a single cut-off date that all agency divisions know in advance), the “confusion” that might be engendered by different agency components using different cut off dates (e.g., each division using the date at which it commenced searching for documents), the alleged cost and inconvenience to the agency of conducting the successive, duplicative searches that might be necessary if the date of a final response or the date of litigation were employed as a cutoff date, and the disruption of the agency’s fee schedules that would accompany the use of anything other than its present procedure. In the absence of more detailed" }, { "docid": "14846495", "title": "", "text": "for summary judgment as to the remainder of the suit. This appeal followed. II. The Use of a Time-of-Request Cut-off Date McGehee’s first challenge concerns the CIA’s decision to limit its search to records in its possession on the date when his request was finalized. He points out that the agency did not disclose any documents to him until compelled to do so by an order of the District Court almost two and one-half years after his original request. Under these circumstances, he argues, the agency failed to discharge its statutory obligation when it retrieved and released only documents that originated with and were in the possession of the CIA during the first month following the events to which his request principally related. A. Applicable Law We begin by reviewing the legal principles that govern McGehee’s claim. First, it is well established that the adequacy of an agency’s response to a FOIA request is measured by a standard of reasonableness. As this court recently noted: [A]n agency is not “ ‘required to reorganize its [files] in response to’ ” a demand for information, but it does have a firm statutory duty to make reasonable efforts to satisfy it. Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 837 (D.C.Cir.1979) (footnotes omitted) (emphasis added). This same standard of reasonableness that has been applied to test the thoroughness and comprehensiveness of agency search procedures is equally applicable to test the legality of an agency rule establishing a temporal limit to its search effort. In other words, a temporal limit pertaining to FOIA searches (such as the “time-of-request cut-off” policy that is at issue in this case) is only valid when the limitation is consistent with the agency’s duty to take reasonable steps to ferret out requested documents. Second, we hold that the agency bears the burden of establishing that any limitations on the search it undertakes in a particular case comport with its obligation to conduct a reasonably thorough investigation. It seems to us clear that the burden of persuasion on this matter is properly imposed on the agency. The" }, { "docid": "3366997", "title": "", "text": "Opinion for the Court filed by Circuit Judge TATEL. TATEL, Circuit Judge: When the State Department responds to Freedom of Information Act requests, it generally declines to search for documents produced after the date of the requester’s letter. Challenging this “date-of-request cut-off’ policy, appellant claims that the Department promulgated it without notice and opportunity to comment as required by the Administrative Procedure Act, and that, in any event, the policy is unreasonable both generally and as applied to appellant’s particular request because it forces FOIA requesters to file multiple requests. We reject the former claim because the policy falls within the APA’s exemption for “rules of agency organization, procedure or practice.” Finding that the State Department has faked to substantiate its claim that an “administrative nightmare” would result were it unable to apply the date-of-request cut-off policy, however, we agree with appellant that the policy is unreasonable both generally and as applied to its FOIA request. Finally, we reject appellant’s additional claim that the Department improperly invoked FOIA’s national security exemption to withhold some otherwise responsive information. I. The State Department processes FOIA requests in four stages. During the first stage, it mails a letter to the requester acknowledging receipt and assigning an identification number. Grafeld Decl. II ¶ 18. This initial letter also informs the requester that the “cut-off date ... is the date of the requester’s letter” and that “no documents ... originat[ing] after the date of [the] letter will be retrieved.” Sforza Decl. ¶ 6. During the second stage, the Department’s Statutory Compliance & Research Division determines “which offices, overseas posts, or other records systems within the Department may reasonably be expected to contain the information requested.” Grafeld Decl. II ¶ 23. The Department then “task[s]” these various components to search for responsive documents. Id. ¶ 28. The speed at which the tasked component completes a search depends largely on available personnel, the nature of the request and the number of outstanding requests. “By far” the most frequently tasked component is the Department’s Central Foreign Policy File, a centralized automated records system containing the “most comprehensive authoritative" }, { "docid": "476709", "title": "", "text": "of State, 276 F.3d 634, 643 (D.C.Cir.2002) (“McGehee expressly rejected the proposition that under FOIA, the ‘use of a time-of-request cut-off date is always reasonable.’ McGe-hee, 697 F.2d at 1102. Although specific circumstances in some agencies may render an across-the-board rule reasonable, the Department has made no showing that warrants such an approach in its case.”). In McGehee, the court concluded that a delay of over two and a half years required further investigation by the district court before the reasonableness of a time-of-request cut-off date for a search could be upheld. While the eleven-month lag between the start of the search and Defendants’ final production of documents to Plaintiff in this case does not strike the Court as presumptively unreasonable, Defendants make no attempt to sustain their burden of demonstrating the reasonableness of this cut-off date other than relying on unspecified agency policy. Defendants never contest in their Opposition to Plaintiffs Cross Motion for Summary Judgment Plaintiffs allegations of unreasonableness. While the court in Public Citizen held that “nothing in this opinion precludes either the Department or any other federal agency from attempting a more compelling justification for imposing a date-of-request cut-off on a particular FOIA request,” Public Citizen, 276 F.3d at 644, Defendants have advanced no justification of any kind in this case. The Court also notes that the D.C. Circuit held that the use of any cut-off date should be relayed to the requestor: “Unless on remand some extraordinary showing is forthcoming of why the agency should not be required to inform reques-ters of the dates it is using, the CIA’s unpublicized temporal limitation of its searches should be held invalid.” McGe-hee, 697 F.2d at 1105. Plaintiff indicates, and Defendants do not refute, that “NIH did not inform IDA that the cut-off date for the search was February 5, 2004.” Pl.’s Cross Mot. for Summ. J. at 24. Accordingly, as Defendants have not met their burden in demonstrating the reasonableness of a February 5, 2004 search cutoff date, the Court shall require NIH’s supplemental search for records located at the APF to incorporate a cut-off date not" } ]

[ { "docid": "6188483", "title": "", "text": "v. Columbia Broadcasting System, Inc., 287 F.2d 478 (9th Cir.1961), cert. denied, 368 U.S. 801, 82 S.Ct. 19, 7 L.Ed.2d 15 (1961); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.1936). Other courts have defined fair use as “the privilege of using copyrighted material in a reasonable manner without the copyright owner’s consent.” Public Affairs Associates, Inc. v. Rickover, supra, 268 F.Supp. at 450. See also Toksvig v. Bruce Pub. Co., 181 F.2d 664 (7th Cir.1950). In this case, the defendants have made verbatim use of vast numbers of the plaintiff’s copyrighted test questions. Such massive copyright infringement is not use of the protected work “in a reasonable manner.” Therefore, this Court doubts that the defendants have established their right to refer to the four factors to be considered in determining whether the fair use doctrine is applicable to a particular case. However, even if it is assumed that Multiprep courses are teaching activities within the meaning of the statute, the defendants cannot invoke the fair use defense unless they also show that they have made a fair use of the copyrighted materials according to the four criteria set forth in the statute. By all four of these measures, Multiprep’s use of the MCAT questions, even if it is “teaching”, is not fair use. The first factor to be considered in determining fair use is “the purpose and character of the use”, including whether such use is of a commercial nature or is for nonprofit educational purposes. Commercial use of copyrighted materials is less favored than nonprofit use. See Martin Luther King Jr. Center for Social Change, Inc. v. American Heritage Products, Inc., 508 F.Supp. 854 (N.D.Ga.1981); Iowa State University Research Foundation, Inc. v. American Broadcasting Companies, Inc., 621 F.2d 57 (2d Cir.1980). One policy underlying this factor is that of encouraging education without raising the costs of nonprofit institutions. Profit-making institutions, if they are making use of copyrighted materials, should be capable of negotiating and paying to the copyright holder a fair fee for the use of the protected work. Of course, the mere fact that a copyright" } ]

[ { "docid": "756169", "title": "", "text": "Co. v. Milky Way Productions, Inc., 215 U.S. P.Q. 124, 131 (N.D.Ga.1981). The critical issue “is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, 105 S.Ct. at 2231-32. In this instance, Hustler did not exploit the value of Haberman’s works in order to sell copies of its magazine. The works were reproduced as items inside the magazine in a regular feature section. In contrast to cases in which fair use was not established, their inclusion was not advertised on the cover, nor made evident to prospective purchaser of Hustler. Compare Rubin v. Boston Magazine Co., 645 F.2d 80, 82 (1st Cir.1981). It does not appear that that reproduction of Haber-man’s postcards was intended to increase sales of the magazine and, thus, in this fashion, improperly capitalize on Haber-man’s work. Pillsbury Co., 215 U.S.P.Q. at 131. Therefore, while Hustler is published for profit and use of Haberman’s works contributed to its entertainment value, the manner of use in this case is not a strong factor militating against a finding of fair use. The court has also considered whether Hustler’s use of “Cracking Eggs” and “The Feast” had the purpose or effect of supplanting Haberman’s use of them and concludes it did not. Misappropriation for a directly competing use would likely be incompatible with fair use. Harper & Row, 105 S.Ct. at 2232 (defendant's conduct was for the intended purpose of supplanting a competitor’s right to be the first to publish President Ford’s memoirs); Marcus v. Rowley, 695 F.2d 1171, 1175 (9th Cir.1983) (“a finding that the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used is strong indica of no fair use”). This case, however, does not involve directly competing uses. Haberman markets his works as fine arts photographs and postcards. The Hustler reproductions were not of comparable size or quality. They would not serve as suitable substitutes for someone who wished to" }, { "docid": "4701565", "title": "", "text": "also favors a finding of fair use. S. Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole Analysis of this factor requires a determination of both the quantitative and qualitative substantiality of Brooks/Cole’s use of Rubin’s copyrighted work. Penelope, 792 F.Supp. at 138. The Love Seale, while quantitatively only a small portion of Rubin’s copyrighted works, was a critical and central component of two of these works — Rubin’s doctoral dissertation and his article “Measurement of Romantic Love” — and thus Brooks/Cole’s qualitatively substantial use of the Love Scale “militate[s] against a finding of fair use.” Sony Corp., 464 U.S. at 450,104 S.Ct. at 792; see Rubin, 645 F.2d at 84. Substantial copying by a defendant, however, “does not automatically preclude the fair use defense,” Fisher, 794 F.2d at 438, for “it has long been recognized that a commentator may fairly reproduce as much of the original, copyrighted work as is necessary to his proper purpose.” Haberman, 626 F.Supp. at 212 (for purposes of commentary on copyrighted photographs, full reproduction was appropriate). Although Forsyth admittedly could have derived some productive application from the use of only a few sample items from the Love Scale (as other authors have), his full reproduction of the Love Scale provided a productive enhancement to his discussion of Rubin’s work which could not have been fully accomplished had he used only a few sample items. See discussion of the first factor supra. Accordingly, Brooks/Cole’s qualitatively substantial copying is ameliorated by Forsyth’s beneficial use of the entire Love Scale, and the Court therefore finds that the third factor points only slightly in Rubin’s favor. A Effect of the Use upon the Potential Market For or Value of the Copyrighted Work The final factor, market effect, is “undoubtedly the single most important element of fair use.” Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233; Penelope, 792 F.Supp. at 138. In cases of noncommercial use of a copyrighted work, it is the plaintiffs burden to show proof either that the particular use is harmful, or that if the" }, { "docid": "716707", "title": "", "text": "used in relation to the copyrighted work as a whole; and 4) the effect on the potential market for or value of the copyrighted work. 17 U.S.C. § 107. 1) Purpose or Character of the Use The copyright statute itself enumerates certain purposes which are most appropriate for a finding of fair use. These include commentary and news reporting. 17 U.S.C. § 107; Nimmer, Nimmer on Copyright § 13.05[A], at 13-67. The central theme of the article is the “Reaganization” of American cinema. The article notes that many recent movies have military related pro-American, anti-Russian themes. Various movies are discussed including Rambo and Rocky IV. The “Ronbo” artwork can be seen as an pictorial representation of the central point of the article. The general purpose of defendants’ use may be deemed to be commentary or news reporting. Thus, this factor weighs in favor of the “fair use” defense. 2) Nature of the Copyrighted Work In weighing the nature of the copyrighted work, the court may consider whether the “work was creative, imaginative and original.” MCA, Inc. v. Wilson, 677 F.2d 180, 182 (2d Cir.1981). Creative works are entitled to more protection than those that are informational. Diamond v. Am-Law Publishing Corp., 745 F.2d 142, 148 (2d Cir.1984). The work in this case is undoubtedly creative, imaginative and original. This factor weighs against a finding of “fair use.” 3) Substantiality of the portion used Generally, a defendant’s use of the materials will not be deemed reasonable if there has been extensive copying. MCA, Inc. v. Wilson, 677 F.2d at 183. In this case, defendants copied plaintiff’s entire work. There are limited circumstances where “fair use” will protect the virtual total reproduction of the copyrighted work. Nimmer, supra, § 13.05[D], at 13-90 (“[TJhere may be certain very limited situations wherein copying of even the entire work for a different functional purpose may be regarded as fair use.”); see Walt Disney Productions v. Mature Pictures Corp., 389 F.Supp. 1397, 1398 (S.D.N.Y.1975). Compare Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 449-50, 104 S.Ct. 774, 792-93, 78 L.Ed.2d 574 (1984) (“the fact" }, { "docid": "4187009", "title": "", "text": "of a copyright infringement. Having so determined, the Court must next address the question of whether the defendant’s copying of the plaintiff’s jingle constituted a fair use which would exempt it from liability under the Copy right Act. Fair use has been defined as “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner of the copyright.” H. Ball, The Law of Copyright and Literary Property 260 (1944). See Meeropol v. Nizer, 560 F.2d 1061, 1068 (2d Cir. 1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). The determination of whether a use constitutes a fair use or is a copyright infringement requires an examination of the facts in each case. Meeropol v. Nizer, supra, 560 F.2d at 1068. To assist in making this determination, section 101 of the 1976 Copyright Act, 17 U.S.C. § 107, sets forth several criteria to be considered: “(1) the purpose and character of the use . . . ; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” The defendant asserts that the purpose and nature of its copying of “I Love New York” was parody, and that its copying was thus a fair use of the song. It has been held that an author .is entitled to more extensive use of another’s copyrighted work in creating a parody than in creating other fictional or dramatic works, Columbia Pictures Corp. v. National Broadcasting Co., 137 F.Supp. 348, 354 (S.D.Cal.1955), since “short of . [a] complete identity of content, the disparity of functions between a serious work, and a satire based upon it, may justify the defense of fair use even where" }, { "docid": "1762797", "title": "", "text": "an infringer of the copyright.” In Stewart, the Court found that the 1976 Copyright Act requires consent by the author of a copyrighted work before a derivative work may be produced and explicitly requires that the copyright “will not be abrogated by incorporation of the work into another work.” Id. at 235, 110 S.Ct. at 1767. Here, it is clear that Defendants did not have consent of the Plaintiff to copy the trailer and Plaintiffs work was incorporated into its video by the Defendants. Defendants further contend that they only used a small portion of the full-length movie in the trailer. “However, even a small taking may sometimes be actionable.” Norse v. Henry Holt and Co. 991 F.2d 568, 565 (9th Cir.1993). There are only two elements necessary for a copyright owner to make out a prima facie case of copyright infringement: (1)ownership of the copyright by the. plaintiff; and (2) copying by the defendant. Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir.1986). It is undisputed here that Plaintiff owns a copyright on the movie and that Defendant copied the trailer containing portions of the movie. Therefore, Plaintiff has established a prima facie ease of copyright infringement. Defendant’s reliance on Twin Books v. Walt Disney, 83 F.3d 1162, 1165 (9th Cir.1996); and American Vitagraph, Inc. v. Levy, 659 F.2d 1023 (9th Cir.1981) is misplaced. Both eases deal with the 1909 Copyright Act and common-law copyright, not applicable here. “Under the Copyright Act of 1976, common law copyright is abolished.” American Vitagraph, supra, at 1023, n. 1. However, Defendants further claim that their use of the trailer constituted a “fair use” of the copyrighted material. The fair use doctrine confers a privilege on people other than the copyright owner “to use the copyrighted material in a reasonable manner, without his consent, notwithstanding the monopoly granted to the owner.” Marcus v. Rowley, 695 F.2d 1171, 1174 (9th Cir.1983). Congress incorporated this common law doctrine into section 107 of the 1976 Copyright Act. Section 107 reads in pertinent part that “[n]otwithstanding the provisions of section 106, the fair" }, { "docid": "14287716", "title": "", "text": "is a mixed question of law and fact decided on a case by case basis in accordance with the nonexclusive statutory factors enumerated in § 107. Wright v. Warner Books, Inc., 953 F.2d 731, 735 (2nd Cir.1991). The Second Circuit has explained that “[t]he fact-driven nature of the fair use determination suggests that a district court should be cautious in granting [dismissal in advance of trial] in this area; however, it does not protect the copyright holder from summary disposition of her claims where there are no material factual disputes.” Id. Section 107 states the applicable doctrine as follows: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall inelude- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 17 U.S.C. § 107. The Court recognizes the merit in Four-nier’s claims that the first, second, and fourth fair use factors weigh in his favor because defendants’ photograph was used for commercial purposes with minimal, if any, artistic or intellectual value beyond that of the original work, because Fournier’s photographs were unpublished and themselves intended for commercial exploitation, and because the Defendants’ photograph has displaced Fournier’s principal opportunity for commercial exploitation. See generally Wright, 953 F.2d" }, { "docid": "1762801", "title": "", "text": "factors “to determine whether the public interest in the free flow of information outweighs the copyright holder’s interest in exclusive control over the work.” Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir.1986). The doctrine of fair use is in essence “an equitable rule of reason.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985). Plaintiff overstates his case by arguing that “it is abundantly clear that an infringer may not claim ‘fair use’ when the infringer uses the copyrighted material for commercial purposes.” However,, if a copied copyrighted work is used for a commercial or profit-making purpose, the use is presumptively unfair. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 449-451, 104 S.Ct. 774, 792-793, 78 L.Ed.2d 574 (1984). Defendants have not presented facts sufficient to rebut that presumption. Under the second nature of the copyrighted works factor, the scope of fair use is greater when informational, as opposed to more creative works are involved. Marcus v. Rowley, 695 F.2d 1171, 1176 (9th Cir.1983). “Copying a news broadcast may have a stronger claim to fair use than copying a motion picture.” Nimmer on Copyright § 13.5. Because the use of the copied trailer in this case is undisputedly for commercial purposes only and involves a creative, as opposed to factual work, the first two factors weigh in favor of the Plaintiff. At first blush, it appears that the third factor may weigh in favor of the Defendants, as it is undisputed that the trailer copied by the Defendants contains only a small portion of the copyrighted full-length movie. However, Defendants copied the entire trailer, a derivative of the copyrighted movie, swinging the balance of this factor in favor of the Plaintiff. The only factor not clearly in Plaintiffs favor is the fourth and final factor, i.e. the effect on potential market or value of the copyrighted work. It appears that Plaintiff has not marketed the movie or the derivative trailer since 1985, and Plaintiff has not set forth any concrete" }, { "docid": "5813877", "title": "", "text": "here and why this factor weighs so strongly in favor of plaintiffs. Courts’ consideration of the profit factor usually arises because the alleged infringing work competes in the same market as the copyrighted work, thus making the “commerciality” more harmful to the copyright holder. See Marcus v. Rowley, 695 F.2d at 1175; Haberman v. Hustler Magazine, Inc., 626 F.Supp. 201, 211 (D.Mass.1986). In cases in which a defendant is claiming fair use for a criticism, commentary or other scholarly research, the courts are more likely to find fair use under this factor. In New Era Publications v. Carol Publishing, 904 F.2d at 156, the Second Circuit found fair use under the character and use factor since the publication in suit was not an economic exploitation of the original work but a legitimate critical biography. In that case, a critic and biographer of L. Ron Hubbard and the Church of Scientology defended his use of quotes from 48 of Hubbard’s works. A potentially widespread use which was notably non-commercial has been held to be a fair use. In Sony Corp. v. Universal City Studios, 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984), television viewers taped plaintiffs’ television programs on home video recorders, doing nothing to enhance the program — simply copying them in order to view them later. The Court decided this “time-shifting” was fair use and placed emphasis on the fact that the viewers were not selling their copies of these programs for profit. Id. at 454-55, 104 S.Ct. at 795. 2. The Nature of the Copyrighted Work. The second factor concerns the nature of the copyrighted work. Courts generally hold that “the scope of fair use is greater with respect to factual than non-factual works.” New Era Publications v. Carol Publishing Group, 904 F.2d at 157. Fac tual works, such as biographies, reviews, criticism and commentary, are believed to have a greater public value and, therefore, uses of them may be better tolerated by the copyright law. See Salinger v. Random House, Inc., 811 F.2d at 96. Works containing information in the public interest may require less" }, { "docid": "1762798", "title": "", "text": "a copyright on the movie and that Defendant copied the trailer containing portions of the movie. Therefore, Plaintiff has established a prima facie ease of copyright infringement. Defendant’s reliance on Twin Books v. Walt Disney, 83 F.3d 1162, 1165 (9th Cir.1996); and American Vitagraph, Inc. v. Levy, 659 F.2d 1023 (9th Cir.1981) is misplaced. Both eases deal with the 1909 Copyright Act and common-law copyright, not applicable here. “Under the Copyright Act of 1976, common law copyright is abolished.” American Vitagraph, supra, at 1023, n. 1. However, Defendants further claim that their use of the trailer constituted a “fair use” of the copyrighted material. The fair use doctrine confers a privilege on people other than the copyright owner “to use the copyrighted material in a reasonable manner, without his consent, notwithstanding the monopoly granted to the owner.” Marcus v. Rowley, 695 F.2d 1171, 1174 (9th Cir.1983). Congress incorporated this common law doctrine into section 107 of the 1976 Copyright Act. Section 107 reads in pertinent part that “[n]otwithstanding the provisions of section 106, the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching ..., scholarship or research is not an infringement of copyright.” 17 U.S.C. § 107. In addition, section 107 specifies four factors to consider in determining whether the use in a particular case is a fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted works; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.... “Fair use is a mixed question of law and fact.” Sega Enterprises Ltd v. Accolade, Inc., 977 F.2d 1510, 1521 (9th Cir.1992). “If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the nonmoving party, a reasonable trier of fact can reach only one conclusion, a court may conclude" }, { "docid": "6186533", "title": "", "text": "construction.” Id. at 1540. The court noted that “[a] party who holds a copyright for cable .programming and who does no more than grant another an exclusive distribution or exhibition license is then in automatic jeopardy of liability as a result of these sections, as is the licensee.” Id. at 1539. Orson argues that once a copyright holder, such as Miramax, makes an initial distribution, a state is free to regulate the manner in which the work is thereafter distributed. 'We reject Orson’s contention. In College Entrance Examination Board v. Pataki, 889 F.Supp. 554 (N.D.N.Y.1995), the court addressed a New York state law that required the owners of copyrights in certain standardized tests, which were used, inter alia, for graduate school admissions, to file copies of those tests with the state after they were administered. The court held that the New York law improperly interfered with the copyright holders’ rights under § 106 because it required reproduction and distribution of the copyrighted tests in the face of the owners’ desire not to do so. A similar analysis is applicable in this case. Congress determined that the copyright holder should be granted exclusive rights under § 106, albeit for a limited period. Although a state regulation falling within the federally established exceptions to those rights, such as fair use, see 17 U.S.C. § 107, may obligate a copyright holder to change its practices to accommodate such uses, see, e.g., Association of Am. Med. Colleges v. Cuomo 928 F.2d 519, 525-26 (2d Cir.1991) (remanding to district court to make factual findings on whether existing state law constitutes fair use), the parties here have not suggested, nor can we conclude, that the regulation enacted through section 203-7 falls within one of the Copyright Act’s exceptions. Rather, the Pennsylvania Act, like the New York law regulating standardized tests, would impose on copyright holders, contrary to their exclusive rights under § 106, an obligation to distribute and make available other copies of the work following their initial decision to publish and distribute copies of the copyrighted item. Although it is true, as Orson points out," }, { "docid": "756160", "title": "", "text": "1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978). The statutory provision for the defense of fair use codifies prior judicial doctrine. Harper & Row, 105 S.Ct. at 2225. Fair use presents a mixed question of fact and law which must be determined by consideration of the facts of each particular case evaluated in terms of the specific, nonexclusive criteria set out by statute. Section 107 provides, in part: Notwithstanding the provisions of section 106 [17 U.S.C. § 106], the fair use of a copyrighted' work, including such use by reproduction ... for purposes such as criticism [and] comment, ... is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a .commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. As elaborated below, the court finds that Hustler has established by a preponderance of the evidence that it made fair use of Haberman’s copyrighted work largely because Hustler demonstrated that its publication of “Cracking Eggs” and “The Feast” did not materially impair the marketability or value of either work. This issue, presented by the fourth § 107 factor, is “undoubtedly the single most important element of fair use.” Harper & Row, 105 S.Ct. at 2234. Before addressing the four factors established by § 107 and the equity of allowing the fair use defense to prevail in this case, it is appropriate to state explicitly what the court has not considered in deciding this matter. The court has not considered the merit of Haberman’s art. Nor has the court considered either the merit of Hustler magazine generally or the merit of the statements it made concerning Haberman’s" }, { "docid": "4701551", "title": "", "text": "disposition upon a “case stated” basis (i.e., on the record before the Court). II. ANALYSIS A. Copyright Claim: Fair Use Brooks/Cole concedes copying Rubin’s copyrighted material, so the Court jumps directly to considering the defense of fair use. Under 17 U.S.C. § 107, the “fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The factors to be considered in determining whether use of a work is fair use include: (1) the purpose and character of the use, including whether such use is of a commer cial nature or is for nonprofit educational purposes; (2) the natui’e of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. These factors are neither exclusive nor should any one factor be determinative. Rather, the factors should be considered “in light of the purpose of the fair use doctrine: to prevent strict enforcement of the copyright law when its enforcement ‘would inhibit the very Progress of Science and useful Arts that copyright is intended to promote.’ ” Penelope v. Brown, 792 F.Supp. 132, 136 (D.Mass.1992) (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 477, 104 S.Ct. 774, 806, 78 L.Ed.2d 574 [1984] [Blaekmun, J., dissenting]). It is the defendant’s burden to prove that the copying is justified under the fair use doctrine. Penelope, 792 F.Supp. at 136. 1. Purpose and Character of the Use Courts typically consider three sub-factors when examining the purpose and character of an alleged infringer’s use of a copyrighted work: (1) whether the use was productive; (2) whether the use was commercial; and (3) whether the alleged infringer’s conduct was proper. Penelope, 792 F.Supp. at 136. Examination of these subfactors reveals that the purpose and character of Forsyth’s copying favors a finding of fair use. The Supreme Court has held" }, { "docid": "5813876", "title": "", "text": "choosing their copy center over others. See “Kinko’s Copyright and Professor Publishing Handbook” (1988) (as advice on how to avoid delays, the manual suggests that employees “[o]ffer an incentive or discount to professors who submit their materials to Kinko’s several weeks before classes start.” Id. at 8.); id. at 42 (Kinko’s Sales Call Follow Up letter which is sent by campus representatives reads, “I have enclosed your Kinko's Faculty Club card, which entitles you to a 10% discount on all goods and services at any Kinko’s nationwide.”). While financial gain “will not preclude [the] use from being a fair use,” New York Times Co. v. Roxbury Data Interface, Inc., 434 F.Supp. 217, 221 (D.N.J.1977), consideration of the commercial use is an important one. “The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231. This is precisely the concern here and why this factor weighs so strongly in favor of plaintiffs. Courts’ consideration of the profit factor usually arises because the alleged infringing work competes in the same market as the copyrighted work, thus making the “commerciality” more harmful to the copyright holder. See Marcus v. Rowley, 695 F.2d at 1175; Haberman v. Hustler Magazine, Inc., 626 F.Supp. 201, 211 (D.Mass.1986). In cases in which a defendant is claiming fair use for a criticism, commentary or other scholarly research, the courts are more likely to find fair use under this factor. In New Era Publications v. Carol Publishing, 904 F.2d at 156, the Second Circuit found fair use under the character and use factor since the publication in suit was not an economic exploitation of the original work but a legitimate critical biography. In that case, a critic and biographer of L. Ron Hubbard and the Church of Scientology defended his use of quotes from 48 of Hubbard’s works. A potentially widespread use which was notably non-commercial has been held to be a fair" }, { "docid": "10930461", "title": "", "text": "Roy Export, 672 F.2d at 1099-1100; Iowa State University Research Foundation, 621 F.2d at 61 n. 6; Wainwright Securities, 558 F.2d at 95. Professor Nimmer gives as examples Vietnam War photographs of the My Lai massacre or the Zapruder “home movie” of the Kennedy assassination. 1 Nimmer on Copyright § 1.10[C] (1983), at 1-82-1-83. He suggests that the First Amendment protects a category of works that contribute to the “democratic dialogue,” a category which he labels “news photographs.” Id. at 1-84. Photographs would refer to all products of the photographic and analogous processes, including motion picture film and videotape, but would exclude other graphic works, such as paintings, sculpture, etc..... There is a definitional problem as to when a photograph is a news photograph.... Perhaps a pragmatic definition would prove useful: e.g., a photograph is a news photograph only if the event depicted in the photograph, as distinguished from the fact that the photograph was made, is the subject of news stories appearing in newspapers throughout the country. Id. While the Court finds Defendant’s argument theoretically provocative, it has little applicability to the question of whether copying the fitness trail feature infringed Plaintiff’s copyright. The fitness trail feature is a “soft news” piece which, though informational, hardly fits in a category with film of the My Lai massacre. Moreover, Plaintiff has preserved the original film; a copy is available to anyone who wants one. Indeed, the fitness trail itself is available for viewing. Thus, the First Amendment offers no defense to Ms. Duncan. D. Fair Use Defendant argues that her copying of the fitness trail feature constituted a permissible “fair use” under 17 U.S.C. § 107. For the reasons hereinafter set forth, the Court rejects her argument. Fair use has been defined in a much-quoted passage as “a privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner [by the copyright].” Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714," }, { "docid": "756168", "title": "", "text": "essential to doing so. The court concludes that Hustler sought both to entertain its readers with Haberman’s works and to comment on them. These facts tend to neutralize each other in the fair use analysis. In considering the character of the use in question, the court has recognized that Hustler magazine is a publication which seeks to earn a profit. The commercial use of copyrighted material generally weighs against a finding of fair use. “[Ejvery commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright____” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451, 104 S.Ct. 774, 793, 78 L.Ed.2d 574, reh’g denied, 465 U.S. 1112, 104 S.Ct. 1619, 80 L.Ed.2d 148 (1984). The fact that Hustler magazine is offered for sale, however, does not dictate a finding that the reproduction of Haber-man’s works was a commercial use. Commentary “is not put to a commercial use simply because the publication is sold rather than given to the public.” Pillsbury Co. v. Milky Way Productions, Inc., 215 U.S. P.Q. 124, 131 (N.D.Ga.1981). The critical issue “is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, 105 S.Ct. at 2231-32. In this instance, Hustler did not exploit the value of Haberman’s works in order to sell copies of its magazine. The works were reproduced as items inside the magazine in a regular feature section. In contrast to cases in which fair use was not established, their inclusion was not advertised on the cover, nor made evident to prospective purchaser of Hustler. Compare Rubin v. Boston Magazine Co., 645 F.2d 80, 82 (1st Cir.1981). It does not appear that that reproduction of Haber-man’s postcards was intended to increase sales of the magazine and, thus, in this fashion, improperly capitalize on Haber-man’s work. Pillsbury Co., 215 U.S.P.Q. at 131. Therefore, while Hustler is published for profit and use of Haberman’s works contributed to its entertainment" }, { "docid": "22465026", "title": "", "text": "irrelevancy to be reversible error. Even if the evidence was in some way relevant to the issues at trial, its probative value was substantially outweighed by the danger of unfair prejudice and confusion of the issues, and therefore could be properly excluded under Fed.R.Evid. 403. The ruling did not prevent defendants from establishing their fair use defense. Introduction of Preliminary and Shooting Scripts To prevail on a claim of copyright infringement, a plaintiff must prove ownership of the copyright and copying by the alleged infringer. Ferguson v. National Broadcasting Co., 584 F.2d 111, 113 (5th Cir. 1978); M. Nimmer, 3 Nimmer on Copyright § 13.01 (1980). Since there is often no direct evidence of copying, it is ordinarily established by proving access to the copyrighted material and substantial similarity between the two works. Nimmer, supra, at § 13.01[B]. A defendant can rebut such a showing by offering evidence that his work was independently created without reference to the prior work, since a copyright, unlike a patent, does not confer an absolute monopoly over the expression but only a right of control over the works which are derived from the copyrighted work. Fred Fisher, Inc. v. Dillingham, 298 F. 145 (S.D.N.Y.1924); M. Nimmer, 2 Nimmer on Copyright § 8.01. If defendant offers evidence of independent creation, the plaintiff has the burden of proving that the defendant in fact copied the protected material. Plaintiff in this case sought to prove copying by establishing access, substantial similarity, and lack of independent creation. In doing so, he was permitted to introduce into evidence several preliminary scripts and the script used in filming the movie. It was not error for the court to allow plaintiff to introduce the various scripts used in developing the movie. Because of the different media involved, examination of the various scripts was relevant to plaintiff’s showing of the process by which the book was transformed into the movie. Moreover, defendants offered testimony that its movie was created independently from plaintiff’s book. To negate the inference of independent creation, plaintiff offered the scripts into evidence to show the manner and speed" }, { "docid": "17933642", "title": "", "text": "within the meaning of section 107 of the 1976 Act, which provides that the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use. made of a work in any particular case i.s a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 107 U.S.C. § 107 (1982). Cf. Werlin v. Reader’s Digest Association, Inc., 528 F.Supp. 451, 463-64 (S.D.N.Y.1981) (duplicated portions of copyrighted work were so small and insignificant as to be de minimus, and, therefore, non-infringing); Elsmere Music, Inc. v. National Broadcasting Co., 482 F.Supp. 741, 743-44 (S.D. N.Y.), aff’d, 623 F.2d 252 (2d Cir.1980) (although copied portion of copyrighted composition was more than de minimus, its incorporation in a parody constituted a non-infringing fair use of the copyrighted work). . Only one registration is mentioned in the defendant's fifth counterclaim, which states that \"[o]n or about April 10, 1984 Silverman procured the registration of a claim of copyright in one of [his] scripts (registration no. PAu 600-029____” Defendant’s Amended Answer and Counterclaims ¶ 33 at 13. Based on the date of registration, we presume the registered script is “Amos ‘n’ Andy Go To The Movies.” See supra note 1. If the plaintiff has obtained registration for \"Amos ‘n’ Andy In Hollywood,” it too is deemed void, since the infringing dialogue in that script is virtually identical to the corresponding scenes in \"Amos ‘n’ Andy Go To The Movies.\" It is not clear whether the plaintiff has obtained copyright registration for his" }, { "docid": "4701552", "title": "", "text": "the factors should be considered “in light of the purpose of the fair use doctrine: to prevent strict enforcement of the copyright law when its enforcement ‘would inhibit the very Progress of Science and useful Arts that copyright is intended to promote.’ ” Penelope v. Brown, 792 F.Supp. 132, 136 (D.Mass.1992) (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 477, 104 S.Ct. 774, 806, 78 L.Ed.2d 574 [1984] [Blaekmun, J., dissenting]). It is the defendant’s burden to prove that the copying is justified under the fair use doctrine. Penelope, 792 F.Supp. at 136. 1. Purpose and Character of the Use Courts typically consider three sub-factors when examining the purpose and character of an alleged infringer’s use of a copyrighted work: (1) whether the use was productive; (2) whether the use was commercial; and (3) whether the alleged infringer’s conduct was proper. Penelope, 792 F.Supp. at 136. Examination of these subfactors reveals that the purpose and character of Forsyth’s copying favors a finding of fair use. The Supreme Court has held that a “productive use” of a copyrighted work, though not determinative, favors a finding of fair use. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985); Sony Corp., 464 U.S. at 455 n. 40, 104 S.Ct. at 795 n. 40; Penelope, 792 F.Supp. at 136. A “productive use” is one that “result[s] in some added benefit to the public beyond that produced by the first author’s work.” (Sony Corp., 464 U.S. at 478, 104 S.Ct. at 807 [Blaekmun, J., dissenting]). A defendant need not show that the use “genuinely and substantially benefitted the public,” but only that the use “could have benefitted the public marginally.” Penelope, 792 F.Supp. at 137; see Harper & Row, 471 U.S. at 561,105 S.Ct. at 2231. This factor has also been phrased as whether the copied material was published to supersede the use of the original work. Penelope, 792 F.Supp. at 136; Haberman v. Hustler Magazine, Inc., 626 F.Supp. 201, 210 (D.Mass.1986). Social Psychology presents the Love Scale in" }, { "docid": "756159", "title": "", "text": "reproduced and distributed copies of Haberman’s original photographs “Cracking Eggs” and “The Feast” in the February, 1983 and August, 1983 issues of Hustler magazine, respectively. Hustler contends, however, that its use of these works was a “fair” one within the meaning of 17 U.S.C. § 107. The court agrees. Fair use has been defined as “ ‘a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.’ ” Harper & Row Publishers, Inc. v. Nation Enterprises, — U.S.-,-, 105 S.Ct. 2218, 2225, 85 L.Ed.2d 588 (1985) (quoting H. Ball, Law of Copyright and Literary Property, 260 (1944)); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). The doctrine affords a means of accommodating the exclusive rights of the copyright owner and “the public’s interest in the dissemination of information' affecting areas of universal concern____” Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 94 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978). The statutory provision for the defense of fair use codifies prior judicial doctrine. Harper & Row, 105 S.Ct. at 2225. Fair use presents a mixed question of fact and law which must be determined by consideration of the facts of each particular case evaluated in terms of the specific, nonexclusive criteria set out by statute. Section 107 provides, in part: Notwithstanding the provisions of section 106 [17 U.S.C. § 106], the fair use of a copyrighted' work, including such use by reproduction ... for purposes such as criticism [and] comment, ... is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a .commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation" }, { "docid": "129068", "title": "", "text": "(1985). If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work. See Diamond v. Am-Law Publishing Corp., 745 F.2d 142, 147 (2d Cir.1984). DISCUSSION I. Fair Use “[T]here are only two elements necessary to the plaintiffs case in an infringement action: ownership of the copyright by the plaintiff and copying by the defendant.” 3 M. Nimmer, Nimmer on Copyright § 13.01 (1985). In the instant case, there is no dispute that Hustler is the registered owner of the copyrighted parody. Hustler, as the copyright owner, has the exclusive right to reproduce, distribute, and publicly display copies of the work. See 17 U.S.C. § 106. Falwell copied the parody without Hustler’s permission. Thus, the district court properly found that Hustler made out a prima facie case of infringement. See Walker v. University Books, Inc., 602 F.2d 859, 862 (9th Cir.1979). Hustler’s exclusive rights, however, are subject to statutory exceptions, including the exception for “fair use.” See 17 U.S.C. §§ 106, 107. Accordingly, Defendants seek to avoid liability by establishing the defense of “fair use.” The fair use doctrine confers a privilege on people other than the copyright owner “to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner.” Marcus v. Rowley, 695 F.2d 1171, 1174 (9th Cir.1983) (quoting Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967)). The doctrine is a means of balancing the need to provide individuals with sufficient incentives to create public works with the public’s interest in the dissemination of information. See Pacific and Southern Co., 744 F.2d at 1495. Congress incorporated this common law doctrine into section 107 of the Copyright Act of 1976, 17 U.S.C. §§ 101-810. Section 107 reads in pertinent part: “Notwithstanding the provisions" } ]

[ { "docid": "17111107", "title": "", "text": "although you are to consider all of the instructions, you might consider Instruction number 16 and Instruction number 15A.” (Id.) The court then solicited comments from both parties regarding the proposed response. Defense counsel objected and submitted the following response: “Yes, a person must know that he has an item in his presence to make it constructive possession.” (Id. at 3.) The district court rejected defense counsel’s proposal, fearing that it might cloud the definition of constructive possession already submitted to the jury in Instruction 16. The court was concerned that defense counsel’s response would force the jury to wrestle with two different definitions, one of which is more restrictive than the other. The court therefore decided to answer the jury’s question with the court’s originally proposed statement, referring the jury to the instructions as a whole and specifically to instructions Number 16 and Number 15A. Smith contends this decision was an abuse of discretion. When responding to a jury’s explicit request for supplemental instructions, the trial judge must take great care “to insure that any supplemental instructions are accurate, clear, neutral, and non-prejudicial.” United States v. Skarda, 845 F.2d 1508, 1512 (8th Cir.1988). “The response to a jury request for supplemental instructions is a matter within the sound discretion of the district court.” Id. (quoting United States v. White, 794 F.2d 367, 370 (8th Cir.1986)). The district court in this ease did not abuse its discretion. The court referred the jury members to the instructions that answered their question, including Instructions Number 16 and Number 15A. Instruction Number 16, which was patterned after Eighth Circuit Model Jury Instruction No. 8.02, accurately stated the legal definitions of the various' types of possession, including constructive possession. See United States v. Ali, 63 F.3d 710, 716 (8th Cir.1995) (noting our frequent approval of this instruction). This instruction explicitly requires a determination that the defendant intended to exercise dominion over something in order to find that he had constructive possession of it. Reference to this instruction should have answered the jury’s question regarding the required mental state for constructive possession. In addition, Instruction" } ]

[ { "docid": "4580487", "title": "", "text": "defendant knowingly possessed a firearm, unless you find beyond a reasonable doubt Johnny Chatmon knew the firearm was present in the vehicle and intended to exercise dominion and control over the firearms [sic] either directly or indirectly. The district court declined to give this instruction because other instructions adequately conveyed the substance of the proposed instruction. “We review a district court’s rejection of defendant’s proposed instruction for abuse of discretion.... ” United States v. Irani, 525 F.Sd 683, 688 (8th Cir.2008) (quoting United States v. Hayes, 518 F.3d 989, 994 (8th Cir.2008)). We will affirm so long as the jury instructions given by the district court, “taken as a whole, fairly and adequately submitted the issues to the jury.” United States v. Engelmann, 720 F.3d 1005, 1011 (8th Cir.2013) (quoting United States v. Whitehall, 532 F.3d 746, 751 (8th Cir.2008)). “Defendants are entitled to a theory of defense instruction if it is timely requested, is supported by the evidence, and is a correct statement of the law____” Id. (quoting Whitehill, 532 F.3d at 752). However, a defendant is not entitled to a particularly worded instruction where the instructions given by the trial judge adequately and correctly cover the substance of the requested instruction. A mere presence instruction is unnecessary where it would have duplicated the instructions outlining the elements of the offense, the definition of possession, and the burden of proof. United States v. Cantrell, 530 F.3d 684, 692 (8th Cir.2008) (internal citation and quotation marks omitted). The district court did not abuse its discretion because the instructions it gave adequately and correctly conveyed the substance of Chatmon’s proposed instruction. Our decision in Cantrell is dispositive. In that case, the defendant — who was also charged under 18 U.S.C. § 922(g) — requested a “mere presence” instruction nearly identical to the one requested by Chatmon. Id. The jury instructions given by the district court in Cantrell “required the jury to find beyond a reasonable doubt Cantrell ‘knowingly possessed’” a firearm. Id. The district court also instructed the jury on the meaning of possession using Eighth Circuit Model Criminal Jury Instruction" }, { "docid": "10441571", "title": "", "text": "No. 15, we hold that defendant has failed to show either that an error under clearly established law was actually committed or that his substantial rights were affected. Accordingly, the district court did not commit plain error in this instance. Furthermore, we find no error in the district court’s response to the jury’s request for “clarification on actual and constructive possession.” The court’s response to the jury’s request was to refer the jury to Instruction No. 11, which the jurors had with them during their deliberations. Instruction No. 11 stated The law recognizes several kinds of possession of a thing. A person may have either actual possession or constructive possession. Also, a person may have sole or joint possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of that thing. A person who, although not in actual possession, has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of the thing. If one person alone has actual or constructive possession of a thing, the person has sole possession of the thing. If two or more persons share actual or constructive possession of a thing, then the persons have joint possession of the thing. Whenever the word “possession” has been used in these instructions it includes actual or constructive possession as well as sole or joint possession. Proximity to a thing is not necessarily possession of the thing, but is a circumstance which may be considered in determining whether a person has possession of a thing. Addendum to Brief for Appellant at 17a. This instruction presents a legally correct definition of possession. Our court has on many occasions approved the language used by the district court in the present case. See United States v. Johnson, 857 F.2d 500, 501 & n. 2 (8th Cir.1988); United States v. Montgomery, 819 F.2d 847, 851-52 (8th Cir.1987); United States v. Henneberry, 719 F.2d 941, 945 (8th Cir.1983), cert. denied, 465 U.S. 1107," }, { "docid": "23433802", "title": "", "text": "The instruction provided: “More than one person can be in possession of something if each knows of its presence and has the power and intention to control it.” It is undisputed that this is a correct statement of the law. Whether the required factual foundation exists to support a requested jury instruction is reviewed for an abuse of discretion. United States v. Hairston, 64 F.3d 491, 493 (9th Cir.1995). Defense counsel presented the evidence and argument justifying the joint possession instruction. Carrasco’s counsel argued to the jury that Burgess, not Carrasco, possessed the revolver, and erroneously implied that possession could not attach to both. (He made a similar, albeit less direct, argument with respect to the shotgun shells.) Defense counsel highlighted that both Carrasco and Burgess occupied the vehicle with the firearm and ammunition, and that both Car-rasco and Burgess had equal access to the shotgun shells. In addition, Carrasco testified that Burgess was the one who brought the revolver into the car. Car-rasco’s evidence and his counsel’s argument that Burgess possessed the firearm and ammunition, when considered in conjunction with the Government’s evidence and argument that Carrasco possessed these items, provide a sufficient factual foundation for the joint possession instruction. It was proper for the district court to inform the jury that possession by one person does not necessarily preclude possession by another. See United States v. Tirrell, 120 F.3d 670, 676 (7th Cir.1997); United States v. Aldaco, 201 F.3d 979, 990 (7th Cir.2000); United States v. Chesney, 86 F.3d 564, 573 (6th Cir.1996). Accordingly, the district court did not abuse its discretion in providing the joint possession instruction. IV. Speedy Trial Act. Carrasco argues that the Government violated the Speedy Trial Act by alleging in the superseding indictment that Carrasco possessed the bullets and shotgun shells in violation of 18 U.S.C. § 922(g)(1). As Carrasco never filed a motion to dismiss on this ground, he contends that the trial court committed plain error. Carrasco also packages this claim as one for ineffective assistance of counsel based on his attorney’s failure to move to dismiss the indictment pursuant to" }, { "docid": "23199349", "title": "", "text": "444 U.S. 1071, 100 S.Ct. 1014, 62 L.Ed.2d 752 (1980); United States v. Rojas, 537 F.2d 216, 219-220 & n. 2 (5th Cir.1976), cert. denied, 429 U.S. 1061, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977). In Rojas, this Court upheld the denial of a “mere presence” instruction on the ground that the district court’s constructive possession instruction (which was practically identical to that given in this case) effectively precluded conviction for mere presence or proximity. We indicated in Rojas that the constructive possession requirement that the defendant have an intent to exercise dominion or control over the contraband obviates the need for a separate “mere presence” instruction. Id. at 220. Accord United States v. Durades, 929 F.2d 1160, 1167-68 (7th. Cir.1991); United States v. Johnson, 857 F.2d 500, 501-02 & n. 2 (8th Cir.1988); United States v. Montgomery, 819 F.2d 847, 851-52 (8th Cir.1987). This case is closer to Rojas than to Cor-dova-Larios. The panel in Cordova-Larios never mentioned what instructions were given or whether they sufficed to eliminate the need for a “mere presence” instruction. We must assume that the trial court in that case did not deliver instructions adequate to preclude a conviction for mere presence or proximity. There is no conflict, therefore, between the holdings of Cordova-Larios and Rojas. Finally, we recognize that sometimes it may be the better practice for the trial court to grant the defense its requested instruction even if the court feels that the issues are adequately covered by other, included instructions. In situations where the defendant’s requested instruction will more specifically and directly explicate the defendant’s theory of the case than a more general instruction offered by the court, inclusion of the defense tendered instruction may well be appropriate for this reason. Such, however, is not the case here. Because of the logical inconsistency of McKnight being “merely present” in the small, open home which he owned and lived in, the “mere presence” instruction requested by the defense, even coupled with the “willful ignorance” instruction, would have tended more to confuse or mislead then to enlighten the jury. 3. The Validity of" }, { "docid": "23098643", "title": "", "text": "street value” were factors indicative of knowledge and sufficiently supported the jury’s verdict). B. Mere-Presence Instruction A criminal defendant is entitled to a theory-of-defense instruction that is timely requested, correctly states the law, and is supported by the evidence. United States v. Claxton, 276 F.3d 420, 423 (8th Cir.2002). The district court has considerable discretion in framing the instructions and it is sufficient if the instruction actually given by the trial court adequately and correctly covers the substance of the requested instruction. We determine the adequacy of instructions by looking at the instructions as a whole and in the context of the trial. Id. at 423-24 (quotation marks and citations omitted). Each defendant timely requested a mere-presence instruction that correctly stated the law. See United States v. Dunlap, 28 F.3d 823, 826 (8th Cir.1994). The theory of defense was, in essence, that the government had failed to carry its burden on two elements of constructive possession — knowledge and control. Thus, the giving of the mere-presence instruction in this case would have duplicated the instructions outlining the elements of the offense, the definition of possession, and the burden of proof. United States v. Jordan, 893 F.2d 182, 185-86 (8th Cir.), vacated on other grounds, 496 U.S. 902, 110 S.Ct. 2581, 110 L.Ed.2d 262 (1990) (finding mere-presence instruction was not supported by the evidence and constructive-possession instruction covered the notion of mere presence); Claxton, 276 F.3d at 423-24 (following Jordan). We conclude the district court did not abuse the discretion it has in framing the instructions. C. Drug Quantity In each defendant’s case, the verdict form submitted to the jury required the jury to determine the quantity of cocaine involved. According to the form, the jury was only to answer the quantity question if the jury found the defendant guilty of possessing with the intent to distribute a mixture or substance containing a detectable amount of cocaine. Along with finding each defendant guilty, the jury indicated that each defendant’s offense involved more than five kilograms of cocaine. And the district court, adopting the findings of the presentence report as its own," }, { "docid": "4580488", "title": "", "text": "a defendant is not entitled to a particularly worded instruction where the instructions given by the trial judge adequately and correctly cover the substance of the requested instruction. A mere presence instruction is unnecessary where it would have duplicated the instructions outlining the elements of the offense, the definition of possession, and the burden of proof. United States v. Cantrell, 530 F.3d 684, 692 (8th Cir.2008) (internal citation and quotation marks omitted). The district court did not abuse its discretion because the instructions it gave adequately and correctly conveyed the substance of Chatmon’s proposed instruction. Our decision in Cantrell is dispositive. In that case, the defendant — who was also charged under 18 U.S.C. § 922(g) — requested a “mere presence” instruction nearly identical to the one requested by Chatmon. Id. The jury instructions given by the district court in Cantrell “required the jury to find beyond a reasonable doubt Cantrell ‘knowingly possessed’” a firearm. Id. The district court also instructed the jury on the meaning of possession using Eighth Circuit Model Criminal Jury Instruction 8.02. Id. at 693. We held that the “ ‘mere presence’ instruction was unnecessary in Cantrell’s case because it ‘would have duplicated the instructions outlining the elements of the offense, the definition of possession, and the burden of proof.’ ” Id. (quoting United States v. Serrano-Lopez, 366 F.3d 628, 637 (8th Cir.2004)). In this case, the district court similarly instructed the jury that, in order to convict Chatmon, it must find beyond a reasonable doubt that he knowingly possessed a firearm. And its instruction defining “possession” is identical to that given by the district court in Cantrell. Because this case is not materially distinguishable from Cantrell, we likewise conclude that the district court did not abuse its discretion by declining to give Chatmon’s proposed “mere presence” instruction. For the foregoing reasons, we affirm Chatmon’s conviction. . The Honorable Laurie Smith Camp, Chief Judge, United States District Court for the District of Nebraska." }, { "docid": "23098664", "title": "", "text": "alone, do not adequately convey a “mere presence” defense theory to which a defendant is justly entitled. Unlike the model aiding and abetting and model conspiracy agreement instructions, the model “possession with intent to distribute” instruction contains no express language stating that “merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person” had knowledge of the contraband and intended ■ to possess it. Compare Model Criminal Jury Instructions for the Eighth Circuit §§ 5.01, 5.06B, with §§ 6.21.841A. Nor does the model “possession” instruction inform jurors that possession cannot be established by “accident or mistake.” Compare Model Criminal Jury Instructions for the Eight Circuit § 8.02, with Vasquez, 82 F.3d at 577. During its deliberations, the Serrano-Lopez jury grappled with the model “possession with intent to distribute” and “possession” instructions. The jury submitted four written questions to the district court, three of which concerned the legal concept of “possession.” The jury first asked, “Would constructive possession, given the second element, be relevant?” Next, the jury asked, “Must it be actual possession to satisfy all essential elements?” Thirty-five minutes later, the jury asked, “What is [the] definition of ‘Controlled Substance’?” and “What is [the] definition of ‘Dominion’?” The district court replied to the jury’s first two questions, advising the jury that all the instructions were relevant, and all the essential elements could be satisfied by finding the defendant’s possession was constructive. The district court declined to define the terms “controlled substance” and “dominion” for the jury. Given the jury’s patent difficulty in understanding and applying critical concepts and key terms in the model “possession with intent to distribute” and “possession” instructions, hindsight indicates a “mere presence” instruction probably would have assisted the jury. “A district court’s refusal to provide a requested instruction warrants reversal only if the refusal prejudices the defendant.” United States v. Davis, 237 F.3d 942, 945 (8th Cir.2001). It could be argued the district court’s refusal to give a mere presence instruction did not prejudice Serrano-Lopez, because his counsel" }, { "docid": "23098661", "title": "", "text": "the inconsistency. The government presented no evidence Serrano-Lopez changed or recanted this statement. At the suppression hearing, Serrano-Lopez’s counsel pointed out to Trooper Ayers that when the trooper questioned Serrano-Lopez during the traffic stop, Trooper Ayers had not, as he believed, asked Serrano-Lopez in Spanish why the occupants were traveling to Oma ha, but had instead asked Serrano-Lopez why he was traveling to Omaha. The record establishes the driver’s first name was “Elvia,” which rhymes with “Sylvia,” the name Trooper Ayers believed Serrano-Lopez stated; the vehicle’s registration was issued to an individual with the surname “Gonzalo”; the vehicle had departed from the Los Angeles area destined for Omaha; and, for all the government knew, Serrano-Lopez was traveling to Omaha to visit a relative named Pablo. The jury heard no evidence that Serrano-Lopez knew drugs were secreted inside the vehicle, that contraband was found on his person, that he had received payment for making the trip, that he used drugs or had been charged previously with a drug offense, or that he, at any time during the journey, drove the vehicle. Serrano-Lopez’s mere presence theory of defense has an adequate foundation in the evidence. The final inquiry is whether the jury instructions, as submitted to the jury, adequately and correctly covered the substance of the requested instruction. See United States v. Manning, 618 F.2d 45, 48 (8th Cir.1980) (reversing district court and noting the instructions given did not cover the substance of the defense). The district court denied Serrano-Lopez’s requested “mere presence” language, opting instead to instruct the jury only on “possession with intent to distribute” and “possession,” using two model instructions. See Model Criminal Jury Instructions of Eighth Circuit §§ 6.21.841A & 8.02. From the record, it appears the district court did not consider submitting a separate instruction on “mere presence.” At least two of our sister circuits have addressed the issue of whether a separate “mere presence” instruction is needed in addition to a model instruction defining “possession.” Reviewing a longer and more detailed, but similarly worded, “possession” instruction, the Fifth Circuit held the “possession” instruction obviated the need" }, { "docid": "14447919", "title": "", "text": "for an abuse of discretion. See United States v. Jara, 474 F.3d 1018, 1022 (8th Cir.2007), United States v. Serrano-Lopez, 366 F.3d 628, 637 (8th Cir.2004). We will affirm if “the instructions given as a whole ... fairly and adequately submitted the issues to the jury.” United States v. Meads, 479 F.3d 598, 601 (8th Cir.2007) (quoting United States v. Johnson, 278 F.3d 749, 752 (8th Cir.2002)). “A [criminal] defendant is entitled to a theory of [the] defense instruction,” such as a “mere presence” instruction, if the instruction “is timely requested, supported by the evidence, and correctly states the law.” Id. (citing United States v. Claxton, 276 F.3d 420, 423 (8th Cir.2002)). However, “a defendant is not entitled to a particularly worded instruction where the instructions given by the trial judge adequately and correctly cover the substance of the requested instruction.” United States v. Manning, 618 F.2d 45, 48 (8th Cir.1980) (citations omitted) (per curiam). A “mere presence” instruction is unnecessary where it “would have duplicated the instructions outlining the elements of the offense, the definition of possession, and the burden of proof.” Serrano-Lopez, 366 F.3d at 637 (citations omitted). Cantrell proposed the following instruction: Mere presence or proximity to a firearm at the scene is not enough to support a finding that defendant knowingly possessed a firearm, unless you find beyond a reasonable doubt that the defendant knew that the firearms were present, and intended to exercise dominion and control over the firearms either directly or through others. The district court rejected Cantrell’s proposed instruction. The district court submitted an instruction which required the jury to find beyond a reasonable doubt Cantrell “knowingly possessed” one or more of the five firearms found during the search of the James residence. The district court also submitted an instruction which defined the term “possession” as follows: The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may have sole or joint possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it." }, { "docid": "23098654", "title": "", "text": "But the use of sampling in the quantity calculation has been upheld as a sufficient means of proving the elements of the offense under the circumstances of one case. See. Gibson v. Bowersox, 78 F.3d 372, 374 (8th Cir.1996). . The fact the drug quantity determination subjected the defendants to a mandatory minimum of ten years of imprisonment, see 21 U.S.C. § 841(b)(1)(A), does not make Apprendi applicable. Aguayo-Delgado, 220 F.3d at 933-34. RILEY, Circuit Judge, concurring in part and dissenting in part. I concur with the majority in affirming the convictions of Elvia Rios (Rios) and Eleodoro Lopez-Uria (Lopez-Uria). I write separately, because I conclude Isidro Serrano-Lopez (Serrano-Lopez) was entitled to have a “mere presence” instruction submitted to the jury. A. Mere Presence Theory of Defense The majority opinion believes the theory of defense for all defendants was focused on the two elements of constructive possession-knowledge and control. Stvpra at 12. Serrano-Lopez focused his defense theory solely on his alleged mere presence. Consistently throughout trial, Serrano-Lopez specifically argued he was arrested and charged based on his mere presence in the vehicle, his mere proximity to concealed drugs discovered in the vehicle, and his mere association with the vehicle’s occupants and owner. During closing argument, Serrano-Lopez’s counsel argued to the jury that “[mjere presence is not evidence of possession.” Serrano-Lopez’s counsel also tendered to the court a proposed jury instruction, which correctly stated the law: “Mere physical proximity to contraband is insufficient to convict a person of possession with intent to distribute.” The district court denied the requested language, noting the court’s instruction defining “possession with intent to distribute” is the circuit’s model jury instruction, and the model instruction is adequate. Model Criminal Jury Instruction of the Eighth Circuit § 6.21.841A. B. Mere Presence Instruction In this circuit a defendant is entitled to an instruction on his theory of defense, if there is evidence to support the instruction, and if the instruction contains a correct statement of the law. United States v. Gonzales, 90 F.3d 1363, 1371 (8th Cir.1996); United States v. Long Crow, 37 F.3d 1319, 1323 (8th Cir.1994)." }, { "docid": "16345665", "title": "", "text": "is supported by the evidence in the case, and is a correct statement of the law.” Id. However, this entitlement does not guarantee a particular formulation of the proposed instruction. Id. Reversal of a conviction, based upon an instructional error, is only warranted if the error causes prejudice. Id. In Point III, Gary claims the district court erred in refusing his proposed instruction defining “knowingly.” Instruction 19 informed the jury that conviction required proof of “knowing” possession of a firearm. Instruction 20 stated that possession could be either actual or constructive, and explained that “[a] person who ... has both power and the intention ... to exercise dominion or control over a thing ... is then in constructive possession of it.” Neither Instruction 19 or 20 defined the term “knowing.” Gary’s claim is without merit. We have held that the term “knowingly” is within the understanding of the lay juror. United States v. Johnson, 892 F.2d 707, 710 (8th Cir.1989). Moreover, Instruction 20 correctly stated the law in this circuit. See Carman, 314 F.3d at 325 (holding that “constructive possession is sufficient for conviction under § 922(g)(1)”). To show constructive possession, the government had to prove both the power and intent to exercise dominion or control over the gun. This can be established “by a showing that the firearm was seized at the defendant’s residence.” United States v. Boykin, 986 F.2d 270, 274 (8th Cir.1993). Because the gun was seized at Gary’s home, the jury could have found that Gary constructively possessed the gun. The instructions as given cor rectly set out the law and the district court properly refused Gary’s proposed instruction on this issue. In Point IV, Gary contends that the district court erred by refusing to submit his proposed instruction regarding the potential unreliability of statements that are not videotaped, audiotaped, transcribed or attested-to by Gary. The requested instruction warned the jury not to give any special weight to reports simply because they were made by the police. We find no error because the district court submitted a credibility instruction which adequately addressed the subject matter of" }, { "docid": "23199348", "title": "", "text": "has both the power and intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. “Possession may be sole or joint. If one person alone has actual or construc tive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. “You may find that the element of possession, as that term is used in these instructions, is present if you find beyond a reasonable doubt that the defendant had actual or constructive possession either alone or jointly with others.” McKnight’s claim of error also fails to satisfy the second prong of the test articulated in Duncan because the defense theory of the case was not only adequately, but better addressed by the constructive possession instruction given by the court. Such a constructive possession instruction has withstood challenge in this Court before. See United States v. Erwin, 602 F.2d 1183, 1185 (5th Cir.1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1014, 62 L.Ed.2d 752 (1980); United States v. Rojas, 537 F.2d 216, 219-220 & n. 2 (5th Cir.1976), cert. denied, 429 U.S. 1061, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977). In Rojas, this Court upheld the denial of a “mere presence” instruction on the ground that the district court’s constructive possession instruction (which was practically identical to that given in this case) effectively precluded conviction for mere presence or proximity. We indicated in Rojas that the constructive possession requirement that the defendant have an intent to exercise dominion or control over the contraband obviates the need for a separate “mere presence” instruction. Id. at 220. Accord United States v. Durades, 929 F.2d 1160, 1167-68 (7th. Cir.1991); United States v. Johnson, 857 F.2d 500, 501-02 & n. 2 (8th Cir.1988); United States v. Montgomery, 819 F.2d 847, 851-52 (8th Cir.1987). This case is closer to Rojas than to Cor-dova-Larios. The panel in Cordova-Larios never mentioned what instructions were given or whether they sufficed to eliminate the need for a “mere presence”" }, { "docid": "23098655", "title": "", "text": "on his mere presence in the vehicle, his mere proximity to concealed drugs discovered in the vehicle, and his mere association with the vehicle’s occupants and owner. During closing argument, Serrano-Lopez’s counsel argued to the jury that “[mjere presence is not evidence of possession.” Serrano-Lopez’s counsel also tendered to the court a proposed jury instruction, which correctly stated the law: “Mere physical proximity to contraband is insufficient to convict a person of possession with intent to distribute.” The district court denied the requested language, noting the court’s instruction defining “possession with intent to distribute” is the circuit’s model jury instruction, and the model instruction is adequate. Model Criminal Jury Instruction of the Eighth Circuit § 6.21.841A. B. Mere Presence Instruction In this circuit a defendant is entitled to an instruction on his theory of defense, if there is evidence to support the instruction, and if the instruction contains a correct statement of the law. United States v. Gonzales, 90 F.3d 1363, 1371 (8th Cir.1996); United States v. Long Crow, 37 F.3d 1319, 1323 (8th Cir.1994). We review de novo the question of whether sufficient evidence existed to submit an affirmative theory of defense, but we review for an abuse of discretion a district court’s refusal to give a “theory of defense” instruction. Id.; United States v. Davis, 103 F.3d 660, 668 (8th Cir.1996). The propriety of giving a “mere presence” or “mere proximity” instruction depends on what the government proved about the defendant’s alleged involvement in the crime. The First Circuit has noted: The “mere presence” defense has become, at one and the same time, both the last haven of the innocent and the last refuge of the scoundrel. Although courts have found it applicable in certain situations, the mere presence defense is not so ubiquitous as to envelop every drug-trafficking case in which the government lacks direct evidence of a defendant’s complicity. The defendant’s presence at a place where contraband is found may or may not be purely coincidental. The attendant circumstances tell the tale-and the culpability of a defendant’s presence hinges upon whether the circumstances fairly imply participatory" }, { "docid": "1967922", "title": "", "text": "of unfair prejudice. Fed.R.Evid. 403. Under the appellate standard of review, however, we accord great deference to the determination of the district court. United States v. Boykin, 679 F.2d 1240, 1244 (8th Cir.1982). See also United States v. Dennis, 625 F.2d 782, 796-97 (8th Cir.1980). Thus, this court will reverse the district court’s decision to admit the evidence of the bulletproof vest only if the court clearly abused its discretion. We have previously upheld the admission of a bulletproof vest in a firearms ease to establish that a defendant knew of the existence of other guns and ammunition. See United States v. Petty, 798 F.2d 1157, 1161 (8th Cir.1986), rev’d on other grounds, 828 F.2d 2 (8th Cir.1987). In this case, Johnson’s motion in limine explicitly directed the district court to Rule 403, and the denial of the motion demonstrates to us that there was a weighing of the probative value of the evidence. There was no error in ruling the vest admissible. Johnson’s latter two arguments deal with jury instructions. First, Johnson asserts error in refusing to instruct that his presence near the gun could not alone demonstrate constructive possession of the revolver so as to violate 18 U.S.C. 922(g)(1). The instruction given by the district court, however, fully covered relevant issues of actual and constructive possession. It framed the issue for the jury to consider as whether Johnson knowingly had the weapon in his possession. We have approved a similar instruction in a closely comparable case. United States v. Montgomery, 819 F.2d 847, 851-52 (8th Cir.1987) (approving substantially identical instruction in case where passenger in car was seen to place gun underneath front seat). Finally, Johnson contends that the district court erred in instructing the jury as to intent and motive. Because the only issue in the case was whether he possessed the weapon, Johnson argues, an instruction regarding intent was unnecessary and prejudicial in suggesting to the jury that Johnson had admitted possessing the gun but that lack of intent somehow excused his act. The instruction was relevant, however, because Johnson himself injected the issue of motive" }, { "docid": "16345664", "title": "", "text": "card had been disclosed to Gary pri- or to trial, there is no reasonable probability that Gary would have been able to reveal a positive identification, nor that any evidence revealed would have changed the jury’s verdict. “In short, unusable or unreadable prints, which might have been [the defendant’s, are] not exculpatory material.” Taylor v. Maggio, 581 F.Supp. 359, 366 (E.D.La. 1984), aff'd, 727 F.2d 341 (5th Cir.1984) (affirming the district court’s denial of a certificate of probable cause). Because Gary cannot show that the withheld evidence was material or exculpatory, his Brady claim fails. B. Jury Instruction Errors Points III and IV of Gary’s appeal allege jury instruction errors by the district court. We review a district court’s denial or acceptance of a party’s proposed jury instruction under an abuse of discretion standard. United States v. Whitehead, 176 F.3d 1030, 1037 (8th Cir.1999) (citing United States v. Tucker, 137 F.3d 1016, 1036 (8th Cir.1998)). Gary is entitled to a proposed instruction “that conveys the substance of his request if his request is timely, it is supported by the evidence in the case, and is a correct statement of the law.” Id. However, this entitlement does not guarantee a particular formulation of the proposed instruction. Id. Reversal of a conviction, based upon an instructional error, is only warranted if the error causes prejudice. Id. In Point III, Gary claims the district court erred in refusing his proposed instruction defining “knowingly.” Instruction 19 informed the jury that conviction required proof of “knowing” possession of a firearm. Instruction 20 stated that possession could be either actual or constructive, and explained that “[a] person who ... has both power and the intention ... to exercise dominion or control over a thing ... is then in constructive possession of it.” Neither Instruction 19 or 20 defined the term “knowing.” Gary’s claim is without merit. We have held that the term “knowingly” is within the understanding of the lay juror. United States v. Johnson, 892 F.2d 707, 710 (8th Cir.1989). Moreover, Instruction 20 correctly stated the law in this circuit. See Carman, 314 F.3d at" }, { "docid": "23098662", "title": "", "text": "the journey, drove the vehicle. Serrano-Lopez’s mere presence theory of defense has an adequate foundation in the evidence. The final inquiry is whether the jury instructions, as submitted to the jury, adequately and correctly covered the substance of the requested instruction. See United States v. Manning, 618 F.2d 45, 48 (8th Cir.1980) (reversing district court and noting the instructions given did not cover the substance of the defense). The district court denied Serrano-Lopez’s requested “mere presence” language, opting instead to instruct the jury only on “possession with intent to distribute” and “possession,” using two model instructions. See Model Criminal Jury Instructions of Eighth Circuit §§ 6.21.841A & 8.02. From the record, it appears the district court did not consider submitting a separate instruction on “mere presence.” At least two of our sister circuits have addressed the issue of whether a separate “mere presence” instruction is needed in addition to a model instruction defining “possession.” Reviewing a longer and more detailed, but similarly worded, “possession” instruction, the Fifth Circuit held the “possession” instruction obviated the need for a separate “mere presence” instruction, because “possession” requires a finding of intent to exercise dominion or control over contraband. United States v. Prudhome, 13 F.3d 147, 149-50 (5th Cir.1994). The Second Circuit also held a “mere presence” instruction was unnecessary because the definitional instruction of “actual and constructive possession” required the jury to find the defendant intended to exercise dominion or control over the contraband and added “possession could not be established by accident or mistake.’’ United States v. Vasquez, 82 F.3d 574, 577 (2d Cir.1996) (emphasis added). The jury instructions in Vasquez further instructed: [T]he person who’s knowingly in possession, his possession occurs voluntarily and intentionally and not because of mistake or accident. The defendant simply may not be convicted of possession of a firearm if he did not intend to possess it. Id. In relatively few cases, such as this one, where the government presents an exceptionally slim evidentiary case of constructive possession against one or more defendants, the Eighth Circuit model “possession with intent to distribute” and model “possession” instructions, standing" }, { "docid": "23310978", "title": "", "text": "the adequacy of the district court's jury instruction, this court considers three criteria. First, the purpose of giving instructions is to inform the jurors of the essential issues before them and of the various permissible ways of resolving those issues. Federal Enterprises, Inc. v. Greyhound Leasing & Financial Corp., 786 F.2d 817, 820 (8th Cir.1986); see also United States v. Richmond, 700 F.2d 1183, 1195-96 (8th Cir.1983) (defendant not entitled to a particularly worded instruction). Second, a party is entitled to an instruction reflecting the party's theory of the case if a timely request is made and the proffered instruction is supported by the evidence and correctly states the law. Id. Third, this court allows the district court judges considerable discretion in choosing the form and language of jury instructions. Federal Enterprises, 786 F.2d at 820; Richmond, 700 F.2d at 1196. The district court did not abuse its discretion in denying Montgomery’s proffered instruction No. 14. The instruction used by the court accurately stated the law on actual and constructive possession. See United States v. Henneberry, 719 F.2d 941, 945 (8th Cir.1983), cert. denied, 465 U.S. 1107, 104 S.Ct. 1612, 80 L.Ed.2d 141 (1984) (stating elements of constructive possession in case alleging possession of stolen goods); Sewell v. United States, 406 F.2d 1289, 1293 & n. 3 (8th Cir.1969) (approving identical instruction). The government’s case was based on a theory of constructive possession in that it alleged that officer Lachenicht had seized the gun from under the car seat in front of Montgomery. Montgomery’s proffered instruction thus did not adequately state the applicable law on possession, because it did not include a statement of the elements of constructive possession. Further, the evidence regarding Montgomery’s theory of defense was contradictory, because Houston testified that he never made the statements which Montgomery claimed were exculpatory. We thus hold that the district court did not abuse its discretion in refusing Montgomery’s proffered instruction. D. References in Closing Argument to Defendant’s Failure to Testify. Montgomery argues the district court erred in denying his motion for mistrial, “based on the government’s numerous comments [during closing" }, { "docid": "23310979", "title": "", "text": "Henneberry, 719 F.2d 941, 945 (8th Cir.1983), cert. denied, 465 U.S. 1107, 104 S.Ct. 1612, 80 L.Ed.2d 141 (1984) (stating elements of constructive possession in case alleging possession of stolen goods); Sewell v. United States, 406 F.2d 1289, 1293 & n. 3 (8th Cir.1969) (approving identical instruction). The government’s case was based on a theory of constructive possession in that it alleged that officer Lachenicht had seized the gun from under the car seat in front of Montgomery. Montgomery’s proffered instruction thus did not adequately state the applicable law on possession, because it did not include a statement of the elements of constructive possession. Further, the evidence regarding Montgomery’s theory of defense was contradictory, because Houston testified that he never made the statements which Montgomery claimed were exculpatory. We thus hold that the district court did not abuse its discretion in refusing Montgomery’s proffered instruction. D. References in Closing Argument to Defendant’s Failure to Testify. Montgomery argues the district court erred in denying his motion for mistrial, “based on the government’s numerous comments [during closing argument] that certain items are not disputed.” (Supp. Tr. 6.) Montgomery objected and moved for mistrial after the following argument by the government: I anticipate the judge is going to instruct you that there are going to be three elements that you have to find to help you reach a verdict. The first element is going to be that the defendant was a convicted felon: if you believe from the evidence beyond reasonable doubt whether or not he was a convicted felon. Now, when you reach that point, ask yourself what is the evidence in the case, in the whole case, defendant’s case as well as the government’s case, with respect to that issue. What evidence do we have as to whether or not he’s a convicted felon? The evidence you have is these exhibits, Government’s Exhibits 3, 4, and 5. Now, Government’s Exhibit 3 are [sic] the certified records of the court showing that in 1979 Andre Montgomery was convicted three times of the offense of robbery in the first degree. I anticipate Judge" }, { "docid": "10441572", "title": "", "text": "is then in constructive possession of the thing. If one person alone has actual or constructive possession of a thing, the person has sole possession of the thing. If two or more persons share actual or constructive possession of a thing, then the persons have joint possession of the thing. Whenever the word “possession” has been used in these instructions it includes actual or constructive possession as well as sole or joint possession. Proximity to a thing is not necessarily possession of the thing, but is a circumstance which may be considered in determining whether a person has possession of a thing. Addendum to Brief for Appellant at 17a. This instruction presents a legally correct definition of possession. Our court has on many occasions approved the language used by the district court in the present case. See United States v. Johnson, 857 F.2d 500, 501 & n. 2 (8th Cir.1988); United States v. Montgomery, 819 F.2d 847, 851-52 (8th Cir.1987); United States v. Henneberry, 719 F.2d 941, 945 (8th Cir.1983), cert. denied, 465 U.S. 1107, 104 S.Ct. 1612, 80 L.Ed.2d 141 (1984); Sewell v. United States, 406 F.2d 1289, 1293 & n. 3 (8th Cir.1969). We also note that nothing in the statute required the district court to instruct the jury that the possession must be intentional or purposeful. Section 922(g) simply provides “[i]t shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition.” Defendant’s theory of the case therefore does not involve a question of whether or not defendant legally possessed the gun, but rather, whether or not defendant’s actions might have been legally excused by innocent reasons. In United States v. Stover, 822 F.2d 48, 50 (8th Cir.1987), the defendant sought to argue to the jury the specific theory that his temporary possession of a revolver “was for a legally excusable reason, i.e., to hand it to the law enforcement officers.” Id. In that case, we noted that the district" }, { "docid": "11336039", "title": "", "text": "would be premising his defense on the theory that he was a victim of government targeting. Shores undeniably called into question the propriety of the investigation during his opening statement when his counsel asked the jury to reflect upon why “Shores [was] the one person taken away that day,” despite the presence of three other adults in the home when the drugs were seized. The challenged statement was offered “only to show why the officers conducted their investigation in the way they did,” namely by focusing their attention on Shores. See United States v. Brooks, 645 F.3d 971, 977 (8th Cir.2011). Therefore, the district court did not abuse its discretion in admitting this evidence. E. Jury Instruction No. 20 Shores asserts that Instruction No. 20, which set forth factors for the jury to consider when determining whether Shores had the intent to distribute the controlled substances he possessed, improperly bolstered the testimony of Detective Clay. We review jury instructions for abuse of discretion, and “must determine whether the instructions, taken as a whole and viewed in light of the evidence and applicable law, fairly and adequately submitted the issues in the case to the jury.” United States v. Dvorak, 617 F.3d 1017, 1024 (8th Cir.2010) (quoting United States v. Beckman, 222 F.3d 512, 520 (8th Cir. 2000)). As long as the jury instructions “properly informed the jury of the law to be applied to the case,” then the district court did not abuse its discretion. United States v. Ryder, 414 F.3d 908, 917 (8th Cir.2005). Detective Clay testified as to why the circumstances in which the drugs were found in 3714 Melba Place reflected Shores’s intent to distribute them. In particular, he cited the quantity and packaging of heroin, the absence of any drug-ingestion paraphernalia, and the presence of multiple types of drugs and certain tools that would facilitate distribution, such as scales. By comparison, Instruction No. 20 stated: In determining a person’s intent to distribute a controlled substance, the jury may consider, among other things, the quantity of the controlled substance; the manner in which the controlled substance was" } ]

[ { "docid": "22538224", "title": "", "text": "The Court of Appeals viewed the obtaining of the serial numbers, however, as an additional search, unrelated to that exigency. Relying upon a statement in Mincey v. Arizona, 437 U. S. 385 (1978), that a “warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation,”’ id., at 393 (citation omitted), the Court of Appeals held that the police conduct violated the Fourth Amendment, requiring the evidence derived from that conduct to be excluded. 146 Ariz. 533, 534-535, 707 P. 2d 331, 332-333 (1985). Both courts-the trial court explicitly and the Court of Appeals by necessary implication — rejected the State’s contention that Officer Nelson’s actions were justified under the “plain view” doctrine of Coolidge v. New Hampshire, supra. The Arizona Supreme Court denied review, and the State filed this petition. r — 1 h — I As an initial matter, the State argues that Officer Nelson s actions constituted neither a “search” nor a “seizure” within the meaning of the Fourth Amendment. We agree that the mere recording of the serial numbers did not constitute a seizure. To be sure, that was the first step in a process by which respondent was eventually deprived of the stereo equipment. In and of itself, however, it did not “meaningfully interfere” with respondent’s possessory interest in either the serial numbers or the equipment, and therefore did not amount to a seizure. See Maryland v. Macon, 472 U. S. 463, 469 (1985). Officer Nelson’s moving of the equipment, however, did constitute a “search” separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment. Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent’s privacy interest. See Illinois v. Andreas, 463 U. S. 765, 771 (1983). But taking 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" } ]

[ { "docid": "23556565", "title": "", "text": "‘plain-view search.’ ”). We have carefully limited the scope of this “proclaims its contents” exception to cases where the incriminating nature of the contents is a “foregone conclusion.” See Williams, 41 F.3d at 192; see also Sanders, 442 U.S. at 764 n. 13, 99 S.Ct. 2586 (requiring that the container’s owner not maintain “any reasonable expectation of privacy” in the contents) (emphasis added). Indeed in United States v. Corral, 970 F.2d 719 (10th Cir.1992), on which Williams principally relied, the court found that no search occurred only because there was a “virtual certainty” that the package contained, in that case, cocaine. Id. at 726 (quoting Brown, 460 U.S. at 751 n. 5, 103 S.Ct. 1535 (Stevens, J., concurring in the judgment)). The obviousness of a container’s contents must be such that an officer’s view of the container is “equivalent to the plain view” of the incriminating contents themselves. Id. (emphasis added). The analogy we used in Williams illustrates both the centrality to the plain view seizure doctrine of the character of the container and the high degree of certainty required: “[W]hen a person opens a Hershey bar, it is a foregone conclusion that there is chocolate inside.” 41 F.3d at 198; see also Brown, 460 U.S. at 750-51, 103 S.Ct. 1535 (Stevens, J., concurring in the judgment) (concurring in the application of the exception because the container there — a knotted party balloon located in a car close to several small plastic vials, quantities of loose white powder, and an open bag of party balloons— was “one of those rare single-purpose containers which ‘by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance’ ”). Only if the character of a closed, opaque container proclaims its incriminating contents to such a degree do we excuse officers from obtaining a search warrant to open the container, assuming the officer has lawfully come into possession of the container. The above principles reflect the longstanding interplay between the two separate interests at stake: citizens’ interest in retaining possession of their property and their" }, { "docid": "14734606", "title": "", "text": "Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), in which the Court held that the warrant requirement applied to the search of a suitcase filled with marijuana and found in the trunk of a stopped vehicle, • the plurality rejected the government’s argument that a closed container in a vehicle may be subject to a warrantless search under the automobile exception. It furthermore rejected a “worthy container” rule, concluding that there is no constitutional distinction to be made among various closed containers such as suitcases, briefcases, portfolios, duffle bags, and boxes: all closed containers manifest an individual’s reasonable expectation of privacy in their contents, unless a container by its very appearance betrays an illegal purpose or its contents are exposed to plain view. See Arkansas v. Sanders, 442 U.S. at 764-65 n.13, 99 S.Ct. at 2593-94 n.13. The plurality stressed, moreover, that the Fourth Amendment does not draw a distinction between personal and impersonal effects; as it succinctly stated, “Once placed within [a closed, opaque container], a diary and a dishpan are equally protected by the Fourth Amendment.” - U.S. at -, 101 S.Ct. at 2846. Joining in the judgment but not the opinion of the plurality, Justice Powell in a concurring opinion rejected the bright line rule, instead premising his conclusion that the search was unlawful on the ground that the defendant had a reasonable expectation of privacy in the carefully wrapped and sealed packages. While acknowledging the benefits of a bright line rule, Justice Powell reasoned that the plurality’s rule in this case placed an unduly heavy burden on law enforcement officers to obtain warrants for the search of trivial containers. Applying Robbins, we think that under either the plurality’s bright line rule or Justice Powell’s reasoning in concurrence, the warrantless search of the bales in the back of the truck was unconstitutional. The well-packaged bales were located in the equivalent of a luggage compartment and were “closed containers” within the meaning of the plurality opinion, and, as their appearance did not manifest their contents, the warrantless search was unconstitutional under the bright" }, { "docid": "1472914", "title": "", "text": "have both been overruled, we believe that the plain view container exception to the warrant requirement of the fourth amendment remains valid. Thus, when a container is “not closed,” or “transparent,” or when its “distinctive configuration ..., proclaims its contents,” the container supports no reasonable expectation of privacy and the contents can be said to be in plain view. Robbins, 453 U.S. at 427, 101 S.Ct. at 2846; Sanders, 442 U.S. at 764 n. 13, 99 S.Ct. at 2593 n. 13. See e.g., United States v. Es- chweiler, 745 F.2d 435, 440 (7th Cir.1984) (police could open envelope which clearly indicated it contained key), cert. denied, 469 U.S. 1214, 105 S.Ct. 1188, 84 L.Ed.2d 334 (1985); United States v. Morgan, 744 F.2d 1215, 1222 (6th Cir.1984) (police could open bottle without a warrant where label on bottle made it apparent that it contained contraband). However, the plain view container exception has never been extended to a container as ambiguous as a camera lens case, and authority in this Circuit, over a dissent, is to the contrary. In United States v. Bon-itz, we declined to apply the doctrine to a hard plastic case. Bonitz, 826 F.2d at 956. We recognized that the “hard plastic case did not reveal its contents to the trial court even though it could perhaps have been identified as a gun case by a firearms expert.” Id. If a hard plastic case containing a gun does not subject its contents to plain view, certainly a camera lens case does not subject its contents to plain view. The government concedes that a camera lens case is “not as distinctive as a kit of burglary tools or a gun case,” but nevertheless argues that the narcotics found inside the camera lens case were in plain view because the camera lens case was inside a glove with a syringe. Essentially, the government would have us expand the plain view container exception to permit a warrantless search of any container found in the vicinity of a suspicious item. We recognize that the officer’s experience and training could have led him to" }, { "docid": "23556562", "title": "", "text": "requires that they obtain a warrant before examining the contents of such a package,” United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (brackets added), or otherwise satisfy one of the exceptions to the warrant requirement. Horton, 496 U.S. at 141 n. 11, 110 S.Ct. 2301. In other words, as Judge Niemeyer (who, three,years ear lier, had been a member of the panel in Williams) has cogently explained, “The ‘plain-view’ doctrine provides an exception to the warrant requirement for the seizure of property, but it does not provide an exception for a search.” United States v. Jackson, 131 F.3d 1105, 1108 (4th Cir. 1997) (emphasis in original); accord United States v. Rumley, 588 F.3d 202, 205 (4th Cir.2009). Only in a very limited subset of cases involving “closed, opaque container[s]” may an officer open the container without first obtaining a warrant or the owner’s consent, Robbins v. California, 453 U.S. 420, 426, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) (plurality opinion), at least where, as here, the container is not located in a vehicle. One exception to the search warrant requirement in this context is in cases involving exigency. See Chadwick, 433 U.S. at 15 n. 9, 97 S.Ct. 2476 (“Of course, there may be other justifications for a warrantless search of luggage taken from a suspect at the time of his arrest; for example, if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage and disarming the weapon.”). Another exception, the one the district court and the majority erroneously rely on, is for “containers (for example a kit of burglar tools or a gun case) [that] by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Sanders, 442 U.S. at 764 n. 13, 99 S.Ct. 2586. In those cases, because “the distinctive configuration of [the] container proclaims its contents,” the owner of the container has no reasonable expectation of privacy in" }, { "docid": "23556564", "title": "", "text": "those contents, Robbins, 453 U.S. at 427, 101 S.Ct. 2841 (plurality opinion) — and thus an officer’s observation of those contents does not constitute a separate “search” for Fourth Amendment purposes. See Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) (“If the inspection by police does not intrude upon a legitimate expectation of privacy, there is no ‘search’.... ”). In such cases the shape and/or character of the container, including where relevant its labeling, even if closed and opaque, is constitutionally equivalent to one that is open or transparent, because it “clearly reveal[s] its contents.” Id.; see also Arizona v. Hicks, 480 U.S. 321, 328, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (“[A] truly cursory inspection — one that involves merely looking at what is already exposed to view, without disturbing it — is not a ‘search’ for Fourth Amendment purposes, and therefore does not even require reasonable suspicion.”); United States v. Payne, 181 F.3d 781, 787 n. 4 (6th Cir. 1999) (“There is no such thing as a ‘plain-view search.’ ”). We have carefully limited the scope of this “proclaims its contents” exception to cases where the incriminating nature of the contents is a “foregone conclusion.” See Williams, 41 F.3d at 192; see also Sanders, 442 U.S. at 764 n. 13, 99 S.Ct. 2586 (requiring that the container’s owner not maintain “any reasonable expectation of privacy” in the contents) (emphasis added). Indeed in United States v. Corral, 970 F.2d 719 (10th Cir.1992), on which Williams principally relied, the court found that no search occurred only because there was a “virtual certainty” that the package contained, in that case, cocaine. Id. at 726 (quoting Brown, 460 U.S. at 751 n. 5, 103 S.Ct. 1535 (Stevens, J., concurring in the judgment)). The obviousness of a container’s contents must be such that an officer’s view of the container is “equivalent to the plain view” of the incriminating contents themselves. Id. (emphasis added). The analogy we used in Williams illustrates both the centrality to the plain view seizure doctrine of the character of the container and the" }, { "docid": "14734634", "title": "", "text": "case. In Robbins the Court held that a small (about the size of a cigar box), closed, opaque container discovered when the officers “opened the tailgate of the stationwagon, located a handle set flush in the deck, and lifted it up to uncover a recessed luggage compartment,” id. at-, 101 S.Ct. at 2844, could not be opened without a warrant. The Court, creating a “bright line” rule, decided that a warrant will ordinarily be required before a container found in the trunk of a car may be searched. It noted two exceptions to this: No warrant is required for (1) a container which, by its very nature, reveals its contents, or (2) a container, the contents of which are exposed to “plain view.” Id. at -, 101 S.Ct. at 2846 (relying on Sanders, 442 U.S. at 764 n.13, 99 S.Ct. at 2593-94). Justice Stewart noted that the first was merely a variation of the second, “since, if the distinctive configuration of a container proclaims its contents, the contents cannot fairly be said to have been removed from a searching officer’s view. The same would be true, of course, if the container were transparent, or otherwise clearly revealed its contents.” Id. at---, 101 S.Ct. at 2846. Neither Sanders nor Robbins supports the rule announced by the majority, that “all closed containers manifest an individual’s reasonable expectation of privacy in their contents, unless a container by its very appearance betrays an illegal purpose or its contents are exposed to plain view.” [slip op. at 972 (emphasis added)]. What the Supreme Court stated, contrary to the majority’s view, was that it would be easy to identify that “some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance,” and that not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment .... There will be difficulties in determining which parcels taken from an automobile require a warrant for" }, { "docid": "1472908", "title": "", "text": "fourth amendment, a defendant must have a reasonable expectation of privacy in the contents of the container. Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983). While neither the district court’s memorandum opinion nor the government’s brief addresses whether the defendant exhibited a reasonable expectation of privacy in the contents of the camera lens case, the record developed at the evidentiary hearing before the district court as well as the specific factual findings of the district court support defendant's position. The container at issue was a closed camera lens case made of black leather and therefore opaque. III R. 281, 312, 362. The case was placed inside a glove. The glove was found on the living room floor of the house. The district court found that the defendant had a reasonable expectation of privacy in the surrounding area when it ruled that defendant had standing to assert his fourth amendment claim. Given these circumstances, the defendant clearly manifested a reasonable expectation of privacy in the contents of the camera lens case. See Robbins v. California, 453 U.S. 420, 426, 101 S.Ct. 2841, 2846, 69 L.Ed.2d 744 (1981) (plurality opinion) (“closed opaque container ... reasonably ‘manifested an expectation that the contents would remain free from public examination’ ”) (quoting United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538 (1977)); United States v. Sylvester, 848 F.2d 520, 524-25 (5th Cir.1988) (defendant had reasonable expectation of privacy in contents of closed hunting box). This does not end our inquiry, as the Supreme Court has recognized certain exceptions to the fourth amendment protections afforded to containers. Probable cause to believe that contraband is stored in a container will justify a warrantless seizure so that a law enforcement officer may preserve the potentially incriminating evidence for the period of time necessary to secure a warrant authorizing the search of the container. Texas v. Brown, 460 U.S. 730, 749-50, 103 S.Ct. 1535, 1547-48, 75 L.Ed.2d 502 (1983) (plurality opinion) (Stevens, J., concurring); see also Jacobsen, 466 U.S. at 121-22,104 S.Ct. at 1660-61 (“it is" }, { "docid": "7595581", "title": "", "text": "frustrated his expectation of privacy and could not claim a violation of his Fourth Amendment right to privacy, at least as to those documents which the IRS had examined and copied prior to Mason’s demand for return. In any event, we believe that the Fifth Circuit’s rationale in Mason may have been undermined by the Supreme Court decision in Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983). In Andreas, the court clarified when a search subject to the Fourth Amendment occurs. In that case, a lawful customs inspection of a container revealed that it contained unlawful drugs. After being so notified, police resealed the container and delivered it to the addressee, who took possession of it. Shortly thereafter, the police seized the container and opened it without obtaining a warrant. The court held that the reopening did not constitute a “search” within the intendment of the Fourth Amendment, because once its contents were initially exposed, any protected privacy interest in the container lapsed. An important principle emphasized by the court in Andreas is that for there to be a “search” within the meaning of the Fourth Amendment, there must be an infringement of a legitimate expectation of privacy. The court explained that reopening the container did not intrude on any legitimate expectation of privacy and thus did not violate the Fourth Amendment. See also, United States v. Jacobsen, 104 S.Ct. at 1660. Applying this prin ciple to the case at bar would only reinforce our conclusion that there was no violation of the Fourth Amendment here inasmuch as, as we have seen, any reasonable expectation of privacy Alinovi may have held in her term paper was extinguished when she exposed its contents to her professor and to a school official so that there was no “search” within the meaning of the Fourth Amendment. In the case at bar, we have already seen that Alinovi lost whatever expectation of privacy in her paper she may have claimed when she unconditionally gave it to her professor and, more importantly, when she gave it to Generelli and informed" }, { "docid": "11810274", "title": "", "text": "the closed, opaque container did not subject its contents to plain view, and the police consequently could not search the container absent a warrant. Id. at 1436-39. In cases involving closed containers, therefore, the plain view doctrine may support the warrantless seizure of a container believed to contain contraband but any subsequent search of the concealed contents of the container must be accompanied by a warrant or justified by one of the exceptions to the warrant requirement. See Brown, 460 U.S. at 749-51, 103 S.Ct. at 1547-48 (Stevens, J., concurring) (plain view doctrine supports the warrantless seizure of a closed container but not the warrantless search of its contents, which were not visible to the police). See also Horton, 110 S.Ct. at 2310 n. 11 (the seizure of a container in plain view “does not compromise the interest in preserving the privacy of its contents because it may only be opened pursuant to a search warrant or one of the well delineated exceptions to the warrant requirement.”). However, where the contents of a seized container are a foregone conclusion, this prohibition against warrantless searches of containers under the plain view doctrine does not apply. We have held that when a container is “ ‘not closed,’ or ‘transparent,’ or when its ‘distinctive configuration ... proclaims its contents,’ the container supports no reasonable expectation of privacy and the contents can be said to be in plain view.” Donnes, 947 F.2d at 1427 (citations omitted). See also United States v. Eschweiler, 745 F.2d 435, 440 (7th Cir.1984) (police may open envelope that clearly contained key) cert. denied, 469 U.S. 1214, 105 S.Ct. 1188, 84 L.Ed.2d 334 (1985); United States v. Morgan, 744 F.2d 1215, 1222 (6th Cir.1984) (police may open bottle without a warrant where label on bottle made it apparent that the bottle contained contraband). Similarly, where the police have already seen the contents of a seized container prior to conducting the search, there is no significant additional invasion of privacy involved in searching the container. Searches compromise the individual interest in privacy, and the prohibition against unreasonable searches “serves primarily as" }, { "docid": "4236732", "title": "", "text": "container. Cf. United States v. Jacobsen, 466 U.S. 109, —, 104 S.Ct. 1652, 1660, 80 L.Ed.2d 85 (1984) (warrantless removal of contents of package upheld because it enabled agent to learn nothing that had not already been discovered by private search). C. The Single-Purpose Container Rule The government contends that the plastic bag was a “single-purpose container” that announced its contents by its very appearance, thereby depriving Miller of any reasonable expectation of privacy in the bag. The Supreme Court first mentioned the “single-purpose container” doctrine in a footnote in Arkansas v. Sanders: Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to “plain view,” thereby obviating the need for a warrant. 442 U.S. 753, 764-65 n. 13, 99 S.Ct. 2586, 2593 n. 13, 61 L.Ed.2d 235 (1979) (citation omitted). The plurality opinion in Texas v. Brown suggested a similar rule, 460 U.S. at 743, 103 S.Ct. at 1543, but did not rely upon Sanders. In Brown, the arresting officer observed a closed, opaque party balloon in the defendant’s car, as well as several small plastic vials, some loose powder, and a bag of party balloons in the glove compartment of the car. Id. 460 U.S. at 733-34, 103 S.Ct. at 1538. The officer seized the balloon and arrested the defendant, and a police chemist later identified the substance in the balloon as heroin. Id. at 734-35, 103 S.Ct. at 1538-39. In upholding the seizure of the balloon under the plain view doctrine, the plurality stated: “The fact that [officer] Maples could not see through the opaque fabric of the balloon is all but irrelevant: the distinctive character of the balloon itself spoke volumes as to its contents — particularly to the trained eye of the officer.” Id. at" }, { "docid": "4426987", "title": "", "text": "their burden of showing a reasonable expectation of privacy based on their formalized arrangement with the other five defendants for the transportation of the contraband. The pilots’ interests in the packages when opened are indistinguishable from those of the other defendants. Id. The pilots have standing. CONCLUSION The warrantless search here violated the Fourth Amendment and the district court correctly suppressed the evidence thus obtained. Although the containers were in plain view, the marijuana inside them was not. While Ross holds that the officers could have searched the packages, either on the spot or shortly thereafter, the automobile exception does not allow a warrantless search of containers seized and secured by the police for three days before the search. The rationale for the automobile exception to the warrant requirement then no longer applies. Finally, the district court correctly found that Johns and Hearron had standing. AFFIRMED. . The government also argued that the wrapped containers were “mere cargo,” to which no Fourth Amendment privacy interests attached. Distinctions based on the likelihood that a particular closed, opaque container contains personal effects are no longer permissible. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982). Since Ross, we no longer need distinguish between “worthy” and “unworthy” containers. . We decline to hold that the contents of the wrapped bales were in plain view as “containers (for example a kit of burglar tools or a gun case) [which] by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Ross, 102 S.Ct. at 2167 n. 19 (quoting Arkansas v. Sanders, 442 U.S. 753, 764 n. 13, 99 S.Ct. 2586, 2593 n. 13, 61 L.Ed.2d 235 (1979)). See also Robbins v. California, 453 U.S. 420, 427-28, 101 S.Ct. 2841, 2846-47, 69 L.Ed.2d 744 (1981). The wrapped bales here did not announce their contents with sufficient clarity to eliminate the need for a warrant. The government implicitly recognized that fact in the district court. At the reopened hearing on the motion to suppress, a government witness testified that" }, { "docid": "10978946", "title": "", "text": "state of the files during the development of the investigation against appellants is needed to determine if Knoll’s expectation of privacy in the files continued after the burglary. The Fourth Amendment only protects against a search that intrudes upon an individual’s reasonable expectation of privacy. See Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983). If the files were closed and their contents not apparent from the exterior, the reasonable expectation of privacy continued so long as the files had not been searched before contact with the government occurred. Otherwise, that expectation of privacy would have been frustrated and at an end. See Jacobsen, 466 U.S. at 117, 104 S.Ct. at 1658; see also United States v. Bonfiglio, 713 F.2d 932, 937 (2d Cir.1983) (clearly labeled cassette tape “had the practical effect of putting the contents of the tape in plain view and therefore reducing the expectation of privacy”). Under Fourth Amendment law a container need not be locked or fastened shut for there to be a legitimate expectation of privacy in its contents, though those facts are emphasized when they exist. See, e.g., Smith v. Ohio, 494 U.S. 541, 541-42, 110 S.Ct. 1288, 1289, 108 L.Ed.2d 464 (1990) (brown paper bag is a closed container); United States v. Donnes, 947 F.2d 1430, 1435-36 (10th Cir.1991) (reasonable expectation of privacy in opaque camera lens ease). The Supreme Court has rejected a constitutional distinction between “worthy” and “unworthy” containers and has noted that “the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.” United States v. Ross, 456 U.S. 798, 822-23, 102 S.Ct. 2157, 2171-72, 72 L.Ed.2d 572 (1982). The often-stated requirement that a container need only be “closed” reflects the standard that for there to be a reasonable expectation of privacy, the contents of a container should not be apparent without opening. So long as the opaque file folders were closed or were in closed boxes, and did not reveal their contents, then a reasonable expectation of privacy continued even after they were stolen from Knoll’s" }, { "docid": "1472912", "title": "", "text": "automobile exception, may open any container found within the automobile which might contain the object of the search. California v. Acevedo, — U.S. —, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991). A sufficiently regulated inventory search permits law enforcement officials to search closed containers found inside an impounded automobile, Colorado v. Bertine, 479 U.S. 367, 374-75, 107 S.Ct. 738, 742-43, 93 L.Ed.2d 739 (1987), or containers in the possession of a person being booked. Illinois v. Lafayette, 462 U.S. 640, 646-47, 103 S.Ct. 2605, 2609-10, 77 L.Ed.2d 65 (1983). Additionally, a search incident to a lawful arrest permits a law enforcement officer to conduct a warrantless search of a container located in the area of the arrestee’s immediate control. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981); Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). See also United States v. Cotton, 751 F.2d 1146, 1148 (10th Cir.1985). However, the government has not raised any of these well-recognized exceptions, and there is no reasonable view of the evidence in the case before us that would support their application. The government asserts that the fact that the lens case was found inside the glove with a syringe which was in plain view gave the officer a “strong basis to infer that the container was associated with something illegal,” and, therefore the search of the lens case would fall within the plain view exception. The sole authority cited by the government for this proposition is language in Robbins v. California, 453 U.S. 420,101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), interpreting the following dicta from Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979): “some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Id. at 764-65 n. 13, 99 S.Ct. at 2593-94 n. 13. See also Robbins, 453 U.S. at 427, 101 S.Ct. at 2846. While Sanders and Robbins" }, { "docid": "13111771", "title": "", "text": "v. Sanders, 442 U.S. 753, 764-65 n. 13, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (emphasis added), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). We previously followed the Sanders dictum when we affirmed a district court’s determination that no warrant was necessary to search a “bag [whose] size and shape suggested it contained a gun.” United States v. Miller, 929 F.2d 364, 364-65 (8th Cir.1991). This exception is limited to those rare containers that are designed for a single purpose, Texas v. Brown, 460 U.S. 730, 750-51, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring in the judgment), because the “distinctive configuration of [such] container^] proclaims [their] contents; [consequently,] the contents cannot fairly be said to have been removed from a searching officer’s view,” Robbins, 453 U.S. at 427, 101 S.Ct. 2841. Individuals, therefore, possess a lesser expectation of privacy in the contents of such containers when the container is observed from a lawful vantage point. There is some suggestion, however, that this does not end the inquiry of whether police may open the container without a warrant because the contents of a single-purpose container are not truly in plain view. In Arizona v. Hicks, the Court gave life to the idea that some lesser invasions of privacy might be justified without a warrant when part of the object is in plain view and police have probable cause to seize it. 480 U.S. at 325, 107 S.Ct. 1149 (holding that observance of stereo turntable in plain view did not justify police moving turntable in order to read its serial number when they lacked probable cause). The single-purpose nature of a container reduces the degree of privacy that a reasonable person may expect, but it does not eliminate it. If we allow police to open any single-purpose container they lawfully come across we would be authorizing exploratory searches of containers where a reasonable person would rightfully expect privacy: for example, police could open violin cases and guitar bags, look inside cereal boxes and bread baskets, or empty out" }, { "docid": "23556563", "title": "", "text": "not located in a vehicle. One exception to the search warrant requirement in this context is in cases involving exigency. See Chadwick, 433 U.S. at 15 n. 9, 97 S.Ct. 2476 (“Of course, there may be other justifications for a warrantless search of luggage taken from a suspect at the time of his arrest; for example, if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage and disarming the weapon.”). Another exception, the one the district court and the majority erroneously rely on, is for “containers (for example a kit of burglar tools or a gun case) [that] by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Sanders, 442 U.S. at 764 n. 13, 99 S.Ct. 2586. In those cases, because “the distinctive configuration of [the] container proclaims its contents,” the owner of the container has no reasonable expectation of privacy in those contents, Robbins, 453 U.S. at 427, 101 S.Ct. 2841 (plurality opinion) — and thus an officer’s observation of those contents does not constitute a separate “search” for Fourth Amendment purposes. See Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) (“If the inspection by police does not intrude upon a legitimate expectation of privacy, there is no ‘search’.... ”). In such cases the shape and/or character of the container, including where relevant its labeling, even if closed and opaque, is constitutionally equivalent to one that is open or transparent, because it “clearly reveal[s] its contents.” Id.; see also Arizona v. Hicks, 480 U.S. 321, 328, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (“[A] truly cursory inspection — one that involves merely looking at what is already exposed to view, without disturbing it — is not a ‘search’ for Fourth Amendment purposes, and therefore does not even require reasonable suspicion.”); United States v. Payne, 181 F.3d 781, 787 n. 4 (6th Cir. 1999) (“There is no such thing as a" }, { "docid": "1472913", "title": "", "text": "there is no reasonable view of the evidence in the case before us that would support their application. The government asserts that the fact that the lens case was found inside the glove with a syringe which was in plain view gave the officer a “strong basis to infer that the container was associated with something illegal,” and, therefore the search of the lens case would fall within the plain view exception. The sole authority cited by the government for this proposition is language in Robbins v. California, 453 U.S. 420,101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), interpreting the following dicta from Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979): “some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Id. at 764-65 n. 13, 99 S.Ct. at 2593-94 n. 13. See also Robbins, 453 U.S. at 427, 101 S.Ct. at 2846. While Sanders and Robbins have both been overruled, we believe that the plain view container exception to the warrant requirement of the fourth amendment remains valid. Thus, when a container is “not closed,” or “transparent,” or when its “distinctive configuration ..., proclaims its contents,” the container supports no reasonable expectation of privacy and the contents can be said to be in plain view. Robbins, 453 U.S. at 427, 101 S.Ct. at 2846; Sanders, 442 U.S. at 764 n. 13, 99 S.Ct. at 2593 n. 13. See e.g., United States v. Es- chweiler, 745 F.2d 435, 440 (7th Cir.1984) (police could open envelope which clearly indicated it contained key), cert. denied, 469 U.S. 1214, 105 S.Ct. 1188, 84 L.Ed.2d 334 (1985); United States v. Morgan, 744 F.2d 1215, 1222 (6th Cir.1984) (police could open bottle without a warrant where label on bottle made it apparent that it contained contraband). However, the plain view container exception has never been extended to a container as ambiguous as a camera lens case, and authority in this Circuit, over a dissent, is to the" }, { "docid": "23556450", "title": "", "text": "rights. The seizure implicated Davis’ possessory interest in his clothing, and any subsequent search implicated his privacy interest. See Texas v. Brown, 460 U.S. 730, 747, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring in the judgment). As Davis’ arguments on this issue acknowledge, under the facts here, the two concepts overlap. Specifically, the seizure of the bag was warranted under the plain view exception only if it was immediately apparent that it contained incriminating evidence. Here, that would require it be immediately apparent that the bag contained evidence of a crime, i.e., Davis’ clothing possessing blood, trace evidence, and/or a bullet hole. Similarly, the subsequent search of the bag (whether to identify or examine its contents), was warranted if it was a foregone conclusion that the bag contained the clothing, which was evidence of a crime. As to both the seizure of the bag and any subsequent search of the bag, the district court’s reliance on United States v. Williams, 41 F.3d 192 (4th Cir.1994) was appropriate. In Williams, officers had properly seized five packages, which consisted of a brown, opaque material wrapped in heavy cellophane. Id. at 197-98. The defendant challenged the subsequent warrantless search, in .which a police officer removed the cellophane wrapping from one of the packages, poked a hole in the opaque material surrounding its contents, removed a small quantity of white powder and field tested the powder, which tested positive for cocaine. Id. at 194. The Williams, Court explained that a search of such a container is permissible under the plain view doctrine when “the contents of a seized container are a foregone conclusion.” Id. at 197. That is, “when a container is not closed, or transparent, or when its distinctive configuration proclaims its contents, the container supports no reasonable expectation of privacy and the contents can be said to be in plain view.” Id. (citations omitted). Williams clearly stated that, “[i]n determining whether the contents of a container are a foregone conclusion, the circumstances under which an officer finds the container may add to the apparent nature of its contents.” Id." }, { "docid": "13111770", "title": "", "text": "in plain view violates no reasonable expectation of privacy, which obviates the need for a search warrant. Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (stating that no invasion of privacy occurs when an item is observed in plain view). Ordinarily, a warrant is necessary before police may open a closed container because by concealing the contents from plain view, the possessor creates a reasonable expectation of privacy. Robbins v. California, 453 U.S. 420, 427, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), overruled on other grounds by United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). However, like objects that sit out in the open, the contents of some containers are treated similarly to objects in plain view. In Arkansas v. Sanders, the Court suggested that no warrant is required to open such containers: “some containers (for example ... a gun case) by their very nature cannot support a reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Arkansas v. Sanders, 442 U.S. 753, 764-65 n. 13, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (emphasis added), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). We previously followed the Sanders dictum when we affirmed a district court’s determination that no warrant was necessary to search a “bag [whose] size and shape suggested it contained a gun.” United States v. Miller, 929 F.2d 364, 364-65 (8th Cir.1991). This exception is limited to those rare containers that are designed for a single purpose, Texas v. Brown, 460 U.S. 730, 750-51, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring in the judgment), because the “distinctive configuration of [such] container^] proclaims [their] contents; [consequently,] the contents cannot fairly be said to have been removed from a searching officer’s view,” Robbins, 453 U.S. at 427, 101 S.Ct. 2841. Individuals, therefore, possess a lesser expectation of privacy in the contents of such containers when the container is observed from a lawful vantage point. There is some suggestion, however, that" }, { "docid": "1182952", "title": "", "text": "still generally, if not inevitably, within his immediate control. As in Belton, the opening and subsequent search of the gun case is also justified as part of the search incident to arrest. The majority also rejects the plain view doctrine as justification for the warrantless seizure of the AR-15 rifle. The majority concedes that “[t]he case containing the AR-15 rifle was in plain view, and the record supports the trial court’s conclusion that the case gave probable cause to sus pect its contents.” The majority concludes, however, that the rifle itself was not in plain view, and its seizure thus violated the fourth amendment. I cannot agree. As the majority notes, the Supreme Court in Arkansas v. Sanders, 442 U.S. 753, 764-65 n. 13, 99 S.Ct. 2586, 2593 n. 13, 61 L.Ed.2d 235 (1979), stated: Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. The majority refuses to apply this language to the present case, stating that Sanders did not specifically involve a gun case and drawing a distinction between the hard gun case involved in this case and a soft-sided gun case. While the facts of Sanders did not involve a gun case, I believe that the reasoning employed by the Court in the footnote is sound and persuasive. Certainly, where the contents of a container are apparent from the very nature of the container itself, there is no reasonable expectation of privacy as to those contents. Robbins v. California, 453 U.S. 420, 427, 101 S.Ct. 2841, 2846, 69 L.Ed.2d 744 (1981). Cf. United States v. Jacobsen, 466 U.S. 109, 120, 104 S.Ct. 1652, 1660, 80 L.Ed.2d 85 (1984). Furthermore, under the facts of this case, I am reluctant to draw a distinction between a hard, plastic gun case and a soft-sided gun case for the purpose of inferring the" }, { "docid": "14734605", "title": "", "text": "bales, Cooke should have obtained a warrant before allowing a search and analysis of the bales to proceed in Charleston two or three days after the stops and detentions; We find authority for our conclusion in the Supreme Court’s recent decision in Robbins v. California,-U.S.-, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981). The Robbins Court reversed a conviction for drug offenses on the ground that a warrantless search of packages of marijuana wrapped in opaque green plastic and stored in the recessed luggage compartment of a station wagon was unconstitutional. Justice Stewart, in a plurality opinion joined by Justices Brennan, White, and Marshall, set forth a bright line rule that any closed, opaque container found in a vehicle during a lawful search may not be opened without a warrant. Relying on the Court’s decisions in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), in which a warrantless search of a footlocker filled with marijuana and seized from the open trunk of a parked automobile was held unconstitutional, and in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), in which the Court held that the warrant requirement applied to the search of a suitcase filled with marijuana and found in the trunk of a stopped vehicle, • the plurality rejected the government’s argument that a closed container in a vehicle may be subject to a warrantless search under the automobile exception. It furthermore rejected a “worthy container” rule, concluding that there is no constitutional distinction to be made among various closed containers such as suitcases, briefcases, portfolios, duffle bags, and boxes: all closed containers manifest an individual’s reasonable expectation of privacy in their contents, unless a container by its very appearance betrays an illegal purpose or its contents are exposed to plain view. See Arkansas v. Sanders, 442 U.S. at 764-65 n.13, 99 S.Ct. at 2593-94 n.13. The plurality stressed, moreover, that the Fourth Amendment does not draw a distinction between personal and impersonal effects; as it succinctly stated, “Once placed within [a closed, opaque container], a diary and a" } ]

[ { "docid": "916818", "title": "", "text": "OPINION AND ORDER PER CURIAM. This litigation presently consists of fifteen actions pending in eight federal districts: four in the Northern District of Illinois; three each in the District of Connecticut and the Eastern District of Pennsylvania; and one each in the Southern District of Ohio, the District of South Dakota, the Northern District of California, the Southern District of New York, and the Western District of Missouri. The complaints in these actions basically allege that from as early as 1965 until 1977, the defendants and various co-conspirators conspired at the mill level, in violation of Section 1 of the Sherman Act, to fix, raise, maintain and stabilize the price of fine paper and to eliminate inter- and intra-brand competition among their wholesaler customers. All the actions were filed as purported class actions. While there are some variations in the descriptions of the classes sought, most are national classes of all, or some group of, fine paper purchasers. The complaints name a total of sixteen defendants, including thirteen defendants that are named in all actions and one defendant that is named in fourteen actions. A federal grand jury in the Eastern District of Pennsylvania currently is investigating possible antitrust violations in the manufacture, distribution and sale of paper and paper products. No indictments have been returned, and the grand jury’s investigation is continuing. Additionally, the Federal Trade Commission (FTC) has recently authorized its Boston Regional Office to investigate certain aspects of the fine paper industry. This litigation is before the Panel on the motion of plaintiffs in twelve of the fifteen actions for transfer pursuant to 28 U.S.C. § 1407 of all actions pending in districts other than the District of Connecticut to that district for coordinated or consolidated pretrial proceedings with the actions pending there. In the alternative, these movants favor transfer to the Northern District of Illinois. All other parties that have taken a position before the Panel, except Crown Zellerbach Corporation, a defendant in three of these actions, favor or do not oppose transfer. Various parties either cross-move for or urge transfer to the Southern District of" } ]

[ { "docid": "22253422", "title": "", "text": "the Executive Committee and Co-lead counsel to act on their behalf. Those lawyers having been elected by all plaintiffs, are hereby appointed to the positions as set forth in Attachment B. B. Plaintiffs’ Executive Committee so selected is vested by the Court with the following responsibilities and duties, and counsel for defendants shall use their best efforts: 1. To coordinate the briefing and argument of motions; 2. To coordinate the initiation and conduct of discovery proceedings; including but not limited to, the preparation of joint written Interrogatories and Requests for the Production of Documents; 3. To coordinate the examination of witnesses in depositions; 4. To coordinate the selection of counsel to act as spokesmen at pretrial conferences; 5. To call meetings of counsel on their side when they deem it appropriate; 6. To provide general coordination of the activities of counsel on its side, and to delegate work responsibilities to selected counsel as may be required; 7. To perform such other duties as may be expressly authorized by further order of the Court. C. Plaintiffs' Co-lead counsel shall exercise the functions of lead counsel as outlined in the Manual for Complex Litigation and shall coordinate the functions of their Executive Committee and any standing Committees established thereby. . See In re Fine Paper Antitrust Litigation, 82 F.R.D. 143 (E.D.Pa.1979). . The cases separate from the class were filed on behalf of state governments, asserting a broader conspiracy including, besides fine paper manufacturers, paper middlemen and paper merchants. These state government plaintiffs pursued their claims through trial. A judgment in favor of the defendants in their case was affirmed. In re Fine Paper Antitrust Litigation, 685 F.2d 810 (3d Cir.), cert. denied sub nom. 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1983). . Pretrial Order No. 83 provides: The pre-trial memoranda required to be filed by Pretrial Order No. 76 shall be in the following form: 1. Jurisdiction — A statement as to the nature of the action and the authority under which the jurisdiction of the Court is invoked. 2. Facts — A statement setting forth, under the" }, { "docid": "22253324", "title": "", "text": "OPINION OF THE COURT GIBBONS, Circuit Judge: Eleven law firms appeal from an order allowing fees out of a fund resulting from the settlement of class actions charging a conspiracy to fix prices in violation of Section 1 of the Sherman Act. 15 U.S.C. § 1 (1982). The order was entered after a hearing on objections to fee applications made on behalf of some members of the plaintiff class. We remand for further proceedings consistent with this opinion. I. Evolution of the Fee Dispute On March 3, 1978, twelve separate fine paper pricefixing lawsuits were transferred by the Judicial Panel on Multi-district Litigation for coordinated and consolidated pretrial proceedings to the Eastern District of Pennsylvania, where four such actions were already pending. The first of these sixteen actions had been filed on July 18, 1977 in the Northern District of Illinois by the law firm of Specks & Goldberg, Ltd. Other actions were later filed in different districts around the country, and these, too, were eventually transferred to the Eastern District of Pennsylvania. Prior to the March 3,1978 transfer, some members of the law firms which had filed the initial cases met, first in Atlanta in January of 1978, and again in Chicago on February 3, 1978, to organize a common strategy for the handling of the litigation. At the February 3, 1978 meeting these plaintiffs’ lawyers, acting as a committee of the whole, elected an Executive Committee, which designated Granvil I. Specks, Esq., of the Chicago firm of Specks & Goldberg, Ltd., and Harold Kohn, Esq., of the Philadelphia firm of Kohn, Savett, Marion & Graf, P.C., as co-chairmen. Both Specks and Kohn were experienced in the successful representation of plaintiffs in Fed.R.Civ.P. 23(b)(3) class actions. Those present at the February 13, 1978 meeting also agreed upon a lead counsel team, comprised of Specks, Kohn, Joseph Cotchett, John Noll and, later, Seymour Kurland. Shortly after the March 3, 1978 transfer order, and ten months prior to any class certification, the trial court held a pretrial conference at which, over the objection of the Attorney General of California, who represented" }, { "docid": "22239621", "title": "", "text": "against the settling defendants. None of these arguments persuades us that the settlements must be set aside or modified; we are, however, in agreement with certain objectors that the district court’s findings are insufficiently detailed to allow us to determine whether the district court abused its discretion in concluding that the terms of the settlements, and the plan to distribute the settlement proceeds to class members, are fair, reasonable and adequate. We therefore remand the case to the district court for more detailed findings explaining its approval of the settlements. We retain jurisdiction during this limited remand. I The Facts We begin with a description of this litigation’s general history. In 1976, the government convened a grand jury to investigate possible criminal antitrust violations occurring in the corrugated container industry. Several purchasers of corrugated containers and corrugated sheets subsequently filed treble damages actions against thirty-seven defendants under section 4 of the Clayton Act, 15 U.S.C. § 15 (1976). These cases, most of which were class actions, were consolidated in the Southern District of Texas in the fall of 1977. On December 6, 1977, the District Court ordered the formation of a plaintiffs’ steering committee consisting of thirteen of the lawyers for plaintiffs in the consolidated actions. The district court order vested the committee with broad authority to control the continuing conduct of plaintiffs’ cases; this authority included the power to enter into settlement discussions with interested defendants. On January 25, 1978, the grand jury returned indictments against fourteen of the defendants. The indictments charged that these defendants (and several individuals who had been employed by the defendants) conspired to fix corrugated container and sheet prices between 1960 and 1974. In addition to the consolidated antitrust actions described, a group of container purchasers filed a state-law antitrust action in the Court of Common Pleas for Spartan-burg County, South Carolina. The defendants in this action were also defendants in the consolidated cases. The state-court plaintiffs in these actions resisted efforts to remove their case to federal court, where it would have been transferred to the Southern District of Texas for consolidation. After" }, { "docid": "22253420", "title": "", "text": "opinion of which we wholeheartedly approve than we have found necessary to reverse. The court’s review of massive fee petitions was burdensome and that burden was discharged with considerable care and attention. The difficulties which the trial court encountered are those which will confront many other courts as a result of the emerging law on fee shifting, a law with which American courts have not until recent years had to cope. It is not surprising that on some issues we should disagree with the trial court in this dynamic area of the law. The judgment will be affirmed insofar as it denies the fee petition of Rogers, Rude, Candlin, Faulkner & Sjostrom. With respect to all other appellants the judgment will be reversed and the ease remanded for redetermination of the amounts of fees and expenses to be awarded in a manner consistent with this opinion. . The actions were brought under Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26. . The objecting class members are identified in the caption above as appellees. The defendants who provided the settlement fund are fifteen manufacturers of fine paper, none of which have any interest in this appeal. The plaintiff class consists nationwide of direct purchasers of defendants' fine paper. See In re Fine Paper Antitrust Litigation, 82 F.R.D. 143 (E.D.Pa.1979) (opinion on class certification). In addition to ' the class members identified as appellees, some party plaintiff class representatives objected to the fee applications of other class representatives, but are not aligned in this appeal as appel-lees. . See In re Fine Paper Antitrust Litigation, 446 F.Supp. 759 (J.P.M.D.L.1978). The Eastern District of Pennsylvania was chosen because in 1977 a federal grand jury in the Eastern District of Pennsylvania was investigating possible antitrust violations in the fine paper industry. No indictments resulted from that investigation. . See Manual For Complex Litigation, § 1.92 (1982). . That approval was embodied in Pretrial Order No. 2, dated April 30, 1978. It provides in relevant part: PLAINTIFFS' EXECUTIVE COMMITTEE A. Counsel for plaintiffs have selected an Executive Committee, Co-chairmen of" }, { "docid": "760040", "title": "", "text": "result of the applications made by Sy Kurland and us, I suggest that you may want to reconsider our exclusion from the Executive and other meaningful committees. (C) The February 3, 1978 Organizational Meeting The formal organizational meeting was held in Chicago on February 3, 1978. The minutes of this meeting show that 21 private law firms representing 13 clients (5 law firms represented Campbell Office Supply) and 11 state attorneys general were in attendance. The minutes state that “it was the consensus, voting on both a case basis and a counsel basis, that for the purpose of this meeting each Attorney General and each private law firm should have one vote on any matter .... ” Class Objectors’ E 158. Following the above procedure, the meeting elected a four-man lead counsel team: Granvil Specks, Harold Kohn, Joseph Cotchett and John Noel. Later Seymour Kurland was added to this group. The meeting then elected a dozen-member Executive Committee (later expanded to 14), with two Co-Chairmen, Specks and Kohn, which had the power to appoint standing committees. The minutes of the meeting concluded with a “Statement of Guiding Principles”: The Chairman [Granvil I. Specks] stated that the members of the Executive Committee were of the opinion that the Fine Paper Antitrust Litigation should be governed by two guiding principles: (1) There will be a fair and equitable allocation of work so that all plaintiffs’ counsel can actively participate in the litigation. (2) That plaintiffs’ counsel will be reasonably compensated for services actually and productively rendered. As a corollary of this principle, the litigation should be run as efficiently as possible and duplicative work should be avoided. Class Objectors’ E 161 Within a matter of a few weeks a host of committees and subcommittees had been formed by the Executive Committee. A plaintiffs’ Discovery Committee was formed with one chairman and three vice-chairmen. Fifteen individual defendants’ Discovery Subcommittees were formed with two chairmen for each subcommittee. Other committees included a Plaintiff’s Rule 37 Subcommittee, a Consolidated Amended Complaint Subcommittee, an Industrial Analysis Committee, and a Finance Committee, most with a chairman and" }, { "docid": "22253325", "title": "", "text": "the March 3,1978 transfer, some members of the law firms which had filed the initial cases met, first in Atlanta in January of 1978, and again in Chicago on February 3, 1978, to organize a common strategy for the handling of the litigation. At the February 3, 1978 meeting these plaintiffs’ lawyers, acting as a committee of the whole, elected an Executive Committee, which designated Granvil I. Specks, Esq., of the Chicago firm of Specks & Goldberg, Ltd., and Harold Kohn, Esq., of the Philadelphia firm of Kohn, Savett, Marion & Graf, P.C., as co-chairmen. Both Specks and Kohn were experienced in the successful representation of plaintiffs in Fed.R.Civ.P. 23(b)(3) class actions. Those present at the February 13, 1978 meeting also agreed upon a lead counsel team, comprised of Specks, Kohn, Joseph Cotchett, John Noll and, later, Seymour Kurland. Shortly after the March 3, 1978 transfer order, and ten months prior to any class certification, the trial court held a pretrial conference at which, over the objection of the Attorney General of California, who represented one plaintiff, it approved the organizational structure proposed by plaintiffs’ counsel. App.A. 130-43. The court by order expressly approved the creation of the Executive Committee, and expressly contemplated the establishment by that committee of additional standing committees. At the time of this pretrial conference a number of subcommittees, including a Rule 37 Subcommittee, a Plaintiffs’ Discovery Committee, a Compliance With Defendants’ Discovery Committee, an Industrial Analysis Committee and a Finance Committee, had already been created by the Executive Committee. App. 0 262-67. The same Pretrial Order which approved the organizational structure of plaintiffs’ counsel also fixed a 30 day time limit for the filing of a motion or motions for class certification, and a 90 day time limit for completion of discovery relating to class action issues. App. A 138-39. It was not until February of 1979, however, that the court certified a national class of direct purchasers of fine paper. Meanwhile, however, settlement discussions went forward with certain fine paper manufacturer defendants. On July 25, 1978, counsel for the plaintiffs received an offer from" }, { "docid": "22253326", "title": "", "text": "one plaintiff, it approved the organizational structure proposed by plaintiffs’ counsel. App.A. 130-43. The court by order expressly approved the creation of the Executive Committee, and expressly contemplated the establishment by that committee of additional standing committees. At the time of this pretrial conference a number of subcommittees, including a Rule 37 Subcommittee, a Plaintiffs’ Discovery Committee, a Compliance With Defendants’ Discovery Committee, an Industrial Analysis Committee and a Finance Committee, had already been created by the Executive Committee. App. 0 262-67. The same Pretrial Order which approved the organizational structure of plaintiffs’ counsel also fixed a 30 day time limit for the filing of a motion or motions for class certification, and a 90 day time limit for completion of discovery relating to class action issues. App. A 138-39. It was not until February of 1979, however, that the court certified a national class of direct purchasers of fine paper. Meanwhile, however, settlement discussions went forward with certain fine paper manufacturer defendants. On July 25, 1978, counsel for the plaintiffs received an offer from St. Regis Paper Co. to settle its total liability for $2 million. Five other defendants made settlement offers between that date and January 16, 1979, when settlement offers totaling $30 million were in hand. Shortly after the entry of the court’s February 1979 order certifying a national class of direct purchasers of fine paper the plaintiffs moved, on March 5, 1979, for preliminary approval of the proposed settlements with the six defendants whose offers totaled $30 million. That proposed settlement was opposed by those paper manufacturer defendants who had not yet offered to settle, some of whom had previously filed cross-claims for contribution. Judicial approval of the partial settlements was not obtained until September 2, 1979. Pretrial Order No. 66. By the time the $30 million settlement with six fine paper manufacturers had been approved, 23 additional separate lawsuits had been added for a total of 38. Fourteen of these were separated from the plaintiff class by virtue of the class certification order. Thus twenty-four individual actions were on file on behalf of the class" }, { "docid": "22253423", "title": "", "text": "Co-lead counsel shall exercise the functions of lead counsel as outlined in the Manual for Complex Litigation and shall coordinate the functions of their Executive Committee and any standing Committees established thereby. . See In re Fine Paper Antitrust Litigation, 82 F.R.D. 143 (E.D.Pa.1979). . The cases separate from the class were filed on behalf of state governments, asserting a broader conspiracy including, besides fine paper manufacturers, paper middlemen and paper merchants. These state government plaintiffs pursued their claims through trial. A judgment in favor of the defendants in their case was affirmed. In re Fine Paper Antitrust Litigation, 685 F.2d 810 (3d Cir.), cert. denied sub nom. 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1983). . Pretrial Order No. 83 provides: The pre-trial memoranda required to be filed by Pretrial Order No. 76 shall be in the following form: 1. Jurisdiction — A statement as to the nature of the action and the authority under which the jurisdiction of the Court is invoked. 2. Facts — A statement setting forth, under the appropriate headings, separately and with particularity, each fact that the party intends to prove at trial either affirmatively or by way of defense, together with a list of: (1) the witnesses (including expert witnesses) whose testimony will be advanced to prove that fact; (2) the documents which will be offered to prove that fact and (3) line by line reference to any portions of depositions and to answers to interrogatories and requests to admit which will be offered to prove that fact. Only those witnesses in this statement will be permitted to testify at trial except to prevent manifest injustice. The plaintiff shall also set forth the method by which they will prove impact, the method by which they calculate each discrete category of damages, and a detailed calculation of their claimed damages. In addition, plaintifffs] shall enumerate with specificity the facts upon which they rely to prove that each defendant or other entity knowingly joined in the alleged conspiracy and all facts, separately as to each defendant, upon which they rely as to each" }, { "docid": "760030", "title": "", "text": "denied equitable relief, and entered judgments accordingly. The judgments were affirmed by the United States Court of Appeals for the Third Circuit. In re Fine Paper Antitrust Litigation, 685 F.2d 810 (3d Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1983). II. Organizational Structure of the Private Plaintiffs’ Case The lawyers representing the private plaintiffs’ class created an organizational structure consisting of tiers of committees and subcommittees with numerous “Chairmen” and scores of “Co-Chairmen” for virtually every task in the case. This arrangement succeeded in utilizing the services of over three dozen law firms and state attorneys general and resulted in enormous charges against the fund by lawyers and numerous paralegals. This top-heavy structure was a model of inefficiency and worked to the detriment of thousands of unnamed class members on whose behalf counsel purported to act. For a three-year period, approximately 97,000 hours were billed to the class — 70,000 in lawyer hours and over 16,000 in paralegal hours. Most of this time, approximately 85,000 hours, was spent in the two-year period after the initial $30 million in settlements had been obtained. Such billing, most of which was at senior partner rates, resulted in an aggregate proposed lodestar of nearly $8 million and, with the application of the requested multipliers, a total fee request of over $20 million. (A) Formation of the Organizational Structure On July 18,1977 Specks & Goldberg, Ltd. filed a complaint in the Northern District of Illinois on behalf of Herst Litho, Inc., a New York based company. Specks’ co-counsel on this initial complaint was the New York firm of Robinson, Silverman, Pearce, Aronsohn & Berman. On October 11, 1977, Specks & Goldberg, Ltd. filed a second Fine Paper case in the District of Connecticut, this time on behalf of Phillip and Ruth Meroney of New Orleans. Specks’ co-counsel on this complaint was Fine, Waltzer & Bagneris, a New Orleans law firm. Each of these actions was brought on behalf of a national class of direct purchasers of fine paper similar to the class eventually certified by the court. After filing these" }, { "docid": "7280886", "title": "", "text": "violated the antitrust laws in connection with the sale and distribution of fine paper. The suit was brought as a class action in which Connecticut purported to represent “all state and local governmental purchasers of fine paper in the United States.” Suits also were brought in other federal district courts by various distributors and other purchasers, including a number of states. Before any motions for class certification were ruled on by the Connecticut district court, the Judicial Panel on MultiDistrict Litigation ordered that 15 fine paper actions pending in eight federal districts be consolidated for pretrial proceedings in the Eastern District of Pennsylvania. In re Fine Paper Antitrust Litigation, 446 F.Supp. 759 (J.P.M.D.L.1978) (per curiam). In one of the first orders issued by the transferee court, the plaintiffs were given the opportunity to file amended complaints. Connecticut did so on May 12, 1978, and again purported to represent a national class of governmental entities. Six days later, the state moved for certification of a class consisting only of itself and governmental units within its borders. Four other states-Illinois, Kansas, Minnesota, and South Dakota (collectively with Connecticut the “minority states”)-asked for similar class certifications in separate suits they had filed. In addition, 15 states (the “majority states”) sought class certification for intrastate governmental units on complaints alleging the existence of antitrust conspiracies among the paper producers and various distributors. On February 16, 1979, the district court granted the certifications requested by Connecticut and the other four minority states, but refused to certify classes requested by the majority states because of a lack of commonality. There was no ruling on the national class originally requested by Connecticut. On March 5, 1979, the plaintiff merchant houses, distributors of paper produced by the manufacturers, representing a nongovernmental national class, and the five minority states representing statewide classes, moved for preliminary approval of a proposed settlement agreement with six of the defendants. The proposed settlement was to include the five state classes and “such other statewide governmental entity classes” that might elect to participate in the settlement by agreement of the settling parties. Two states" }, { "docid": "22253421", "title": "", "text": "above as appellees. The defendants who provided the settlement fund are fifteen manufacturers of fine paper, none of which have any interest in this appeal. The plaintiff class consists nationwide of direct purchasers of defendants' fine paper. See In re Fine Paper Antitrust Litigation, 82 F.R.D. 143 (E.D.Pa.1979) (opinion on class certification). In addition to ' the class members identified as appellees, some party plaintiff class representatives objected to the fee applications of other class representatives, but are not aligned in this appeal as appel-lees. . See In re Fine Paper Antitrust Litigation, 446 F.Supp. 759 (J.P.M.D.L.1978). The Eastern District of Pennsylvania was chosen because in 1977 a federal grand jury in the Eastern District of Pennsylvania was investigating possible antitrust violations in the fine paper industry. No indictments resulted from that investigation. . See Manual For Complex Litigation, § 1.92 (1982). . That approval was embodied in Pretrial Order No. 2, dated April 30, 1978. It provides in relevant part: PLAINTIFFS' EXECUTIVE COMMITTEE A. Counsel for plaintiffs have selected an Executive Committee, Co-chairmen of the Executive Committee and Co-lead counsel to act on their behalf. Those lawyers having been elected by all plaintiffs, are hereby appointed to the positions as set forth in Attachment B. B. Plaintiffs’ Executive Committee so selected is vested by the Court with the following responsibilities and duties, and counsel for defendants shall use their best efforts: 1. To coordinate the briefing and argument of motions; 2. To coordinate the initiation and conduct of discovery proceedings; including but not limited to, the preparation of joint written Interrogatories and Requests for the Production of Documents; 3. To coordinate the examination of witnesses in depositions; 4. To coordinate the selection of counsel to act as spokesmen at pretrial conferences; 5. To call meetings of counsel on their side when they deem it appropriate; 6. To provide general coordination of the activities of counsel on its side, and to delegate work responsibilities to selected counsel as may be required; 7. To perform such other duties as may be expressly authorized by further order of the Court. C. Plaintiffs'" }, { "docid": "760025", "title": "", "text": "the fifteen cases before it under common docket number 323, and transferred them to the Eastern District of Pennsylvania, where a federal grand jury was investigating possible antitrust violations in the fine paper industry. See In re Fine Paper Antitrust Litigation, 446 F.Supp. 759 (Jud.Pan.Mult.Lit.1978). Within a year of the transfer, twenty-three additional cases had been filed, and a total of thirty-eight cases were consolidated. The named plaintiffs in the thirty-eight lawsuits were divided into two categories. One group of lawsuits became known as the Private Plaintiffs, which included certain “Minority State Plaintiffs”. These plaintiffs alleged a horizontal conspiracy among fifteen named defendants to fix and raise the prices at which fine paper was sold to their customers. These fifteen defendants, known as the “Mill-Defendants”, manufactured fine paper and sold it both to middlemen (“Merchants”) and other buyers, such as publishing houses, greeting card companies, printers and commercial and other industrial users. The remaining fourteen plaintiffs were state governmental entities, known as the “Majority States”, which alleged a single horizontal and vertical conspiracy among the fifteen mill-defendants and the middlemen, “independent” merchants, to fix the prices of fine paper which was sold to governmental entities in the fourteen states. The plaintiffs filed two separate motions for class certification. One, filed on behalf of the private plaintiffs, requested the court to certify private plaintiffs (and the “Mi nority States”) who alleged a horizontal conspiracy, as representatives of a nationwide direct purchaser class. The other was filed by the Majority States, requesting the court to certify fourteen separate statewide governmental entity classes, each alleging horizontal and vertical conspiracies. After a hearing and argument, I entered an order on February 10, 1979, which denied the Majority States’ class certification motion and certified the private plaintiffs and Minority States as class representatives on behalf of the following classes: Nationwide Direct Purchaser Class: All persons, other than governmental entities, in the United States (excluding defendants and named co-conspirators in the MDL 323 actions, their respective subsidiaries and affiliates) which during the period January 1, 1965 to June 30, 1977, purchased from any defendant, or any" }, { "docid": "7280885", "title": "", "text": "OPINION OF THE COURT WEIS, Circuit Judge. After notice of the partial settlement of consolidated class actions, one putative class member objected because the class representative had not requested certification of the class specified in the complaint. The district court rejected the objections to the settlement and dismissed the settling defendants. We remand so that the court may rule on the status of the class as defined in the complaint and entertain a motion by the putative class member to intervene. In another phase of the litigation, a partial assignee of some of the claims presented by a class sought to opt out of the settlement. The district court refused to allow the assigned claims to be withdrawn. We remand so that the district court may consider joinder of the partial assignee as an additional class member. The opinion will treat the appeals separately. I THE NEW YORK APPEAL On July 29,1977, the State of Connecticut filed a complaint in the United States District Court for the District of Connecticut alleging that defendant manufacturers had violated the antitrust laws in connection with the sale and distribution of fine paper. The suit was brought as a class action in which Connecticut purported to represent “all state and local governmental purchasers of fine paper in the United States.” Suits also were brought in other federal district courts by various distributors and other purchasers, including a number of states. Before any motions for class certification were ruled on by the Connecticut district court, the Judicial Panel on MultiDistrict Litigation ordered that 15 fine paper actions pending in eight federal districts be consolidated for pretrial proceedings in the Eastern District of Pennsylvania. In re Fine Paper Antitrust Litigation, 446 F.Supp. 759 (J.P.M.D.L.1978) (per curiam). In one of the first orders issued by the transferee court, the plaintiffs were given the opportunity to file amended complaints. Connecticut did so on May 12, 1978, and again purported to represent a national class of governmental entities. Six days later, the state moved for certification of a class consisting only of itself and governmental units within its borders." }, { "docid": "4268916", "title": "", "text": "MEMORANDUM OF DECISION McGLYNN, District Judge: This litigation presently consists of 37 antitrust actions (the “MDL 323 actions”), of which 4 were filed in this district originally and the remainder were transferred to this district by the Judicial Panel on Multidistrict Litigation for coordinated or consolidated pre-trial proceedings pursuant to 28 U.S.C. § 1407. In re: Fine Paper Antitrust Litigation, 446 F.Supp. 759 (Jud. Pan.Multi.Lit.1978). The complaints in each action basically allege that defendants and various co-conspirators conspired to fix the prices of a line of products known as fine paper in violation of Section 1 of the Sherman Act (15 U.S.C. § 1). Each of the actions is brought under Sections 4 and 16 of the Clayton Act (15 U.S.C. §§ 15, 26), provisions authorizing suit by private parties injured by violations of the antitrust laws. Plaintiffs in 34 of the 37 actions have sought certification of classes pursuant to Rule 23 Fed.R.Civ.P. Additionally, the Commonwealth of Massachusetts has filed a motion to proceed as a unitary plaintiff. By order dated February 16, 1979, I denied the motions by the states of Alaska, Arizona, Arkansas, California, Colorado, Iowa, Louisiana, Missouri, Montana, Nebraska, New Mexico, Oregon, Pennsylvania, Utah and Washington (each a plaintiff in one of the actions before the court) for certification of state-wide classes consisting of local governmental units within each plaintiff’s state. At the same time, the court certified classes in the actions listed below as follows: a) State of Connecticut v. Boise Cascade Corp., et al, C.A. 78—1044. A class consisting of the state of Connecticut, all its cities, counties, and political subdivisions and all school districts, government universities and community colleges within the State, which during the period January 1, 1965 to June 30, 1977 purchased from any defendant, or any subsidiary or affiliate thereof, any kind, type or grade of fine paper (that is, all printing and writing papers listed on American Paper Institute Product Reference List under API Code Nos. 2621-200 to 2621-679, both inclusive and including the prime coated body stock which is the subject of the exclusion note in No. 2621-330," }, { "docid": "916826", "title": "", "text": "engaged in acts and practices which may be in violation of Section 5 of the Federal Trade Commission Act, including, but not limited to, resale price maintenance and other vertical restraints of trade in connection with the manufacture, sale, and distribution of fine paper products in the United States. See 820 Antitrust & Trade Reg. Rep. (BNA), at A-20 (Sept. 29, 1977). The common defendants and one plaintiff contend that because plaintiffs in the litigation before us have alleged a horizontal conspiracy at the mill level, the FTC investigation of possible vertical restraints is not relevant to this litigation. The moving plaintiffs point out that the complaints in this litigation allege that defendants engaged in a nationwide horizontal conspiracy at the mill level to fix the price of fine paper and to eliminate inter- and intra-brand competition among their wholesaler customers. These plaintiffs contend that the FTC investigation is relevant to at least the allegations that defendants conspired to eliminate competition. . The Panel has been advised that additional actions have recently been filed in this litigation. These actions will be treated as tag-along actions. See Rules 1, 9 and 10, R.P.J.P.M.L., 65 F.R.D. 253, 255, 259-60 (1975). . See, e. g., In re Sugar Industry Antitrust Litigation, 433 F.Supp. 1122, 1124-25 (Jud.Pan. Mult.Lit.1977); 427 F.Supp. 1018, 1025, 1027 (Jud.Pan.Mult.Lit.1977); In re Folding Carton Antitrust Litigation, 415 F.Supp. 384, 386 (Jud. Pan.Mult.Lit.1976). . Plaintiff in one of the Eastern District of Pennsylvania actions attached a copy of this subpoena to its papers before the Panel. The subpoena was directed to Continental Group, Inc., which is a defendant in In re Corrugated Container Antitrust Litigation, MDL-310, but is not a defendant in the actions now before the Panel. This plaintiff also attached Continental’s response to a conditional transfer order issued by the Panel in Corrugated Container in which Continental represents that ten other paper manufacturers have been served by the grand jury with similar subpoenas. Brief of Continental Group, Inc. at 9, In re Corrugated Container Antitrust Litigation, MDL-310 (J.P. M.L., filed January 16, 1978). It appears that at least eight" }, { "docid": "22126803", "title": "", "text": "which had purchased a 1977 Oldsmobile with a Chevrolet engine, and more than 100 other Oldsmobile purchasers. The complaint alleged that the sale of the Oldsmobiles without disclosure of their engine source violated the Magnuson-Moss Act, 15 U.S.C. §§ 2301-2312, and sought certification of the action as a nationwide class action. The Oswald and Miller actions were later brought to the federal district court and consolidated with the State of Illinois action before Judge McGarr. Upon GM’s petition, the Judicial Panel on Multidistrict Litigation transferred seven actions then pending in other federal courts to the Northern District for consolidated pretrial proceedings. On July 22, 1977, the district court entered an order adopting an agreement of the numerous counsel for the plaintiffs in the consolidated cases. The order created an executive committee of six attorneys to represent the plaintiffs in all pretrial proceedings. See generally Manual for Complex Litigation §§ 1.92-1.93. Although the committee was given broad power in the pretrial proceedings, the order provided that the committee could conduct settlement negotiations only with the consent of all counsel for the named plaintiffs. On October 13, 1977, the district court certified the consolidated cases as a class action. The order defined the class as “[a]ll persons . . . who purchased 1977 Oldsmobile automobiles which without their knowledge or consent, contained V-8 engines manufactured by the Chevrolet Motor Division . . . ” The court dismissed all federal claims except the Magnuson-Moss claim and declined to exercise its power to take pendent jurisdiction over the related state law claims. The trial court recognized that parallel state court actions were pending, but rejected GM’s position that the state proceedings should prevent class certification on the Magnuson-Moss claim. Despite the certification of the class, no notice to class members was mailed to inform them of the pendency of the class action at that time. B. The Settlement Sometime during the fall of 1977, General Motors entered into settlement negotiations with representatives of the various state Attorneys General who had filed or were contemplating filing actions against GM. A representative of the Illinois Attorney" }, { "docid": "760036", "title": "", "text": "to participate in the Atlanta session. See Class Objectors’ E-155-56. Certain documents, including Mr. Fine’s letter, are quoted at length because they provide some insight into the workings of the class action bar and help to demonstrate that the polestar of plaintiffs’ organizational structure in this case was patronage, not efficiency: I called you on Thursday, February 2, 1978, after receiving your notice that there was to be an organizational meeting of all plaintiffs’ counsel to be held on the following day in Chicago, because I had heard disquieting reports from a number of sources. As I told you, I had heard that there had been a meeting of selected plaintiffs’ counsel in Atlanta at which an Executive Committee had been agreed upon, and that Harold [Kohn] had made disparaging remarks about our firm and stated that we could not serve on any such committee. When I called you on February 2, you told me that there had indeed been a meeting in Atlanta; and that we could not be on the Executive Committee, because Harold had said so. You stated, however, that we would certainly not be barred from serving on other committees and, indeed, you said that you had the highest regard for the legal abilities of our firm. When I asked you who was going to be on the Executive Committee, you identified lawyers in five Philadelphia firms, including Dave Berger. While I have great respect and admira tion for Dave’s legal abilities, I questioned you about his inclusion on the Executive Committee when we were to be excluded, in view of the fact that he had not yet to our knowledge filed a fine paper case and that we had not only filed a case, but taken an active part in obtaining the impoundment of the Grand Jury documents and in the transfer hearing before the Multidistrict Panel. You replied that Dave would certainly have to have a case on file to be on the committee and that he was selected to be on the committee because of his “position in the industry.” I asked whether" }, { "docid": "7945518", "title": "", "text": "the “majority states,” because their cases were not suitable for generalized proof. On the same day, however, the court issued a class certification order for the first group of cases which distinguished between two categories of plaintiffs within that particular group. One was the “minority states” which was divided into five separate classes, each consisting of one state and the various governmental bodies within its respective borders. The second category, the nationwide direct purchaser class, is the one primarily at issue on this appeal. It was defined by the court as “all persons, other than governmental entities, in the United States, (excluding defendants and named co-conspirators in the MDL 323 actions, their respective subsidiaries and affiliates) which during the period January 1, 1965 to June 30, 1977, purchased from any defendant, or any subsidiary thereof . . . fine paper .... ” 82 F.R.D. at 147. (emphasis added). The majority states proceeded on their separate ways, and on December 31, 1980 the court approved a settlement between them and the independent merchant houses named as defendants in those suits. The majority states’ claims against the remaining defendants, the mills themselves, proceeded to trial and resulted in a judgment for the defendants which was affirmed on appeal. In re Fine Paper Antitrust Litigation, 685 F.2d 810 (3d Cir.1982). Litigation in the private purchaser and minority states class actions also continued and resulted in a settlement of approximately $50,000,000. Following court approval of the settlement, final judgment was entered in those actions on June 18, 1981. The appellants here, independent merchant houses, filed claims to share in the settlement fund but were notified in August and September 1981 by the class representatives’ executive committee that their claims were being recommended for disallowance. The reason stated was that appellants had been named as defendants or co-conspirators in the “majority states” cases and, therefore, had been excluded from the private purchaser class by the certification order. Appellants then requested the district court to declare that they were members of the private purchaser class and entitled to share in the fund. In the alternative, they" }, { "docid": "7945519", "title": "", "text": "defendants in those suits. The majority states’ claims against the remaining defendants, the mills themselves, proceeded to trial and resulted in a judgment for the defendants which was affirmed on appeal. In re Fine Paper Antitrust Litigation, 685 F.2d 810 (3d Cir.1982). Litigation in the private purchaser and minority states class actions also continued and resulted in a settlement of approximately $50,000,000. Following court approval of the settlement, final judgment was entered in those actions on June 18, 1981. The appellants here, independent merchant houses, filed claims to share in the settlement fund but were notified in August and September 1981 by the class representatives’ executive committee that their claims were being recommended for disallowance. The reason stated was that appellants had been named as defendants or co-conspirators in the “majority states” cases and, therefore, had been excluded from the private purchaser class by the certification order. Appellants then requested the district court to declare that they were members of the private purchaser class and entitled to share in the fund. In the alternative, they asked the court to amend the class definition to include them as members. On November 3, 1981 the district court concluded that since appellants “were named as defendants or co-conspirators in one or more of the actions which have been consolidated under MDL 323 ..., they are specifically excluded from the plaintiff class as defined by the Court. ...” The court explained that appellants were excluded because “[t]he potential for a conflict of interest would have patently existed if the Court had included [appellants] in a class of plaintiffs which were bringing an action for antitrust violations against companies with whom these same [appellants] were accused of conspiracy to fix the prices of fine paper.” The court declined to redefine the class because under Federal Rule of Civil Procedure 23(c)(1) such action is permitted only “before the decision on the merits.” Even assuming that it had the authority to do so, the court believed redefinition at that stage would be unfair to those plaintiffs who had relied on the court’s original certification in deciding to" }, { "docid": "760041", "title": "", "text": "committees. The minutes of the meeting concluded with a “Statement of Guiding Principles”: The Chairman [Granvil I. Specks] stated that the members of the Executive Committee were of the opinion that the Fine Paper Antitrust Litigation should be governed by two guiding principles: (1) There will be a fair and equitable allocation of work so that all plaintiffs’ counsel can actively participate in the litigation. (2) That plaintiffs’ counsel will be reasonably compensated for services actually and productively rendered. As a corollary of this principle, the litigation should be run as efficiently as possible and duplicative work should be avoided. Class Objectors’ E 161 Within a matter of a few weeks a host of committees and subcommittees had been formed by the Executive Committee. A plaintiffs’ Discovery Committee was formed with one chairman and three vice-chairmen. Fifteen individual defendants’ Discovery Subcommittees were formed with two chairmen for each subcommittee. Other committees included a Plaintiff’s Rule 37 Subcommittee, a Consolidated Amended Complaint Subcommittee, an Industrial Analysis Committee, and a Finance Committee, most with a chairman and a vice-chairman. See Specks’ Status Report dated March 3, 1978, Class Objectors’ E 588-93. At this court’s first pretrial conference on April 19, 1978, certain states’ attorneys general objected to the makeup of the Executive Committee established at the February 3rd organizational meeting. In particular, Michael Spiegel, Deputy Attorney General of California complained at length about' the organization of the case and about the voting procedures used by the private law firms, N.T., 4/19/78 at 28-33: “I think what we are coming down to in this case is what really is at stake here. In this litigation you have got a group of States who have filed cases. These States are claiming damages for purchases that they have made. They have got clients, that is, the attorneys general representing them have clients with purchases, they have something at stake in this litigation. Hs * * * * “On the other side we have a group of private attorneys here without substantial clients! ! If you go down that list and look at the clients they" } ]

[ { "docid": "18107752", "title": "", "text": "sell Lakewood’s business. Sunbeam Products, doing business as Jar-den Consumer Solutions, bought the assets, including Lakewood’s patents and trademarks. Jarden did not want the Lakewood-branded fans CAM had in inventory, nor did it want CAM to sell those fans in competition with Jarden’s products. Lakewood’s trustee rejected the executory portion of the CAM contract under 11 U.S.C. § 365(a). When CAM continued to make and sell Lakewood-branded fans, Jarden filed this adversary action. It will receive 75% of any recovery and the trus tee the other 25% for the benefit of Lakewood’s creditors. The bankruptcy judge held a trial. After determining that the Lakewood-CAM contract is ambiguous, the judge relied on extrinsic evidence to conclude that CAM was entitled to make as many fans as Lakewood estimated it would need for the entire 2009 selling season and sell them bearing Lakewood’s marks. In re Lakewood Engineering & Manufacturing Co., 459 B.R. 306, 333-38 (Bankr.N.D.Ill.2011). Jarden contends in this court— following certification by the district court of a direct appeal under 28 U.S.C. § 158(d)(2)(A) — that CAM had to stop making and selling fans once Lakewood stopped having requirements for them. The bankruptcy court did not err in reading the contract as it did, but the effect of the trustee’s rejection remains to be determined. Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, Inc., 756 F.2d 1043 (4th Cir.1985), holds that, when an intellectual-property license is rejected in bankruptcy, the licensee loses the ability to use any licensed copyrights, trademarks, and patents. Three years after Lubrizol, Congress added § 365(n) to the Bankruptcy Code. It allows licensees to continue using the intellectual property after rejection, provided they meet certain conditions. The bankruptcy judge held that § 365(n) allowed CAM to practice Lakewood’s patents when making box fans for the 2009 season. That ruling is no longer contested. But “intellectual property” is a defined term in the Bankruptcy Code: 11 U.S.C. § 101(35A) provides that “intellectual property” includes patents, copyrights, and trade secrets. It does not mention trademarks. Some bankruptcy judges have inferred from the omission that Congress codified Lubrizol with respect" } ]

[ { "docid": "14876834", "title": "", "text": "Act. Those provisions granted bankruptcy courts jurisdiction over all \"civil proceedings arising under title 11 [The Bankruptcy Title] or arising in or related to cases under title 11.” 458 U.S. at 54, 102 S.Ct. 2858 (quoting 28 U.S.C. § 1471(b) (1976 ed. Supp. IV)) (alteration in original). The Court concluded that this grant of jurisdiction over proceedings merely \"related to” bankruptcy cases to non-Article III bankruptcy judges violated the Constitution. This decision rested on the notion that non-Article III judges may only hear cases involving public, congressionally created rights, but not claims based on private common-law rights. See 458 U.S. at 80-84, 102 S.Ct. 2858 (citing Crowell v. Ben son, 285 U.S. 22, 51-65, 52 S.Ct. 285, 76 L.Ed. 598 (1932)). The protections afforded a debtor under the Bankruptcy Code are congressionally created public rights. The debt- or's breach of contract claim, along with the other claims the debtor brought, however, involved only private common-law rights, and thus could not be adjudicated in a non-Article III court. In response to the Northern Pipeline decision, Congress enacted the jurisdiction provisions currently set forth in 28 U.S.C. §§ 157 & 1334. See Bankruptcy Amendments & Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 344. As seen above, these provisions differ from those at issue in Northern Pipeline primarily in that they limit a bankruptcy judge’s ability to issue final orders and judgments in cases brought under the non-core \"related” jurisdiction. See 28 U.S.C. § 157(c). . See American Hardwoods, Inc. v. Deutsche Credit Corp. (In re American Hardwoods, Inc.), 885 F.2d 621, 624 (9th Cir.1989) (“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 ... is the scope and forms of relief the court may order in an action in which it has jurisdiction.”); Holly’s, Inc. v. City of Kentwood (In re Holly’s, Inc.), 172 B.R. 545, 554 n. 9 (Bankr.W.D.Mich.1994), aff'd., 178 B.R. 711 (W.D.Mich.1995); Gray v. Hall, 203 Cal. 306, 265 P. 246, 251 (1928) (“Jurisdiction" }, { "docid": "23660920", "title": "", "text": "upon their lien priorities (or subordination priorities if any)? Cf. United States v. Darnell (In re Darnell), 834 F.2d 1263, 1269 (6th Cir.1987) (under § 724(b), competing tax lien creditors’ claims determined by priority under non-bankruptcy law; lower court’s determination of pro rata distribution was erroneous). Summarizing, the subordination is unenforceable against Holly’s postpetition management earnings. However, unless it is later determined in an adversary proceeding that a federal purpose requires a different result, the subordination is enforceable against Holly’s prepetition management earnings. 7. Assumption or Rejection of Management Agreement. We have now returned from the outer fringes. The Management Agreement signed by the Partnership and Holly’s, as of the Debtors’ bankruptcy filing date, contained reciprocal obligations and required performance by both Debtors. There is no question that the agreement is an exec-utory contract. Terrell, 892 F.2d at 471; JRT, Inc. v. TCBY Sys., Inc. (Matter of JRT, Inc.), 121 B.R. 314, 320 (Bankr.W.D.Mich.1990). In this dual bankruptcy setting, the Management Agreement may be assumed if approved by court order in both Debtors’ bankruptcy cases. 11 U.S.C. § 365(a). See, e.g., Data-Link Sys., Inc. v. Whitcomb & Keller Mortgage Co. (In re Whitcomb & Keller Mortgage Co.), 715 F.2d 375, 380 (7th Cir.1983); In re Providence Television Ltd. Partnership, 113 B.R. 446, 452 (Bankr.N.D.Ill.1990). If the Management Agreement is burdensome to either estate based upon the respective Debtor’s business judgment, either the Partnership or Holly’s may reject the agreement after notice and hearing. Bildisco, 465 U.S. at 528, 104 S.Ct. at 1197; Leasing Serv. Corp. v. First Tennessee Bank Nat’l Ass’n, 826 F.2d 434, 436 (6th Cir.1987); JRT, 121 B.R. at 320-21. Generally, an executory contract must be assumed or rejected in its entirety; a trustee or debtor in possession may not pick and choose terms or clauses in a contract to assume or reject. See, e.g., Bildisco, 465 U.S. at 531-32, 104 S.Ct. at 1198-99 (chapter 11 debtor in possession must assume executory contract cum onere); United States Lines, Inc. v. United States (In re McLean Indus., Inc.), 132 B.R. 247, 265 (Bankr.S.D.N.Y.1991); In re Cutters, Inc., 104 B.R." }, { "docid": "18107757", "title": "", "text": "been eligible for rejection under § 365(a), the licensee could have continued using the trademarks. 607 F.3d at 964-68. Like Judge Ambro, we too think Lubrizol mistaken. Here is the full text of § 365(g): Except as provided in subsections (h)(2) and (i)(2) of this section, the rejection of an executory contract or unexpired lease of the debtor constitutes a breach of such contract or lease— (1) if such contract or lease has not been assumed under this section or under a plan confirmed under chapter 9, 11,12, or 13 of this title, immediately before the date of the filing of the petition; or (2) if such contract or lease has been assumed under this section or under a plan confirmed under chapter 9, 11, 12, or 13 of this title— (A) if before such rejection the case has not been converted under section 1112, 1208, or 1307 of this title, at the time of such rejection; or (B) if before such rejection the case has been converted under section 1112, 1208, or 1307 of this title — • (i) immediately before the date of such conversion, if such contract or lease was assumed before such conversion; or (ii) at the time of such rejection, if such contract or lease was assumed after such conversion. Most of these words don’t affect our situation. Subsections (h)(2) and (i)(2) are irrelevant, and paragraph (1) tells us that the rejection takes effect immediately before the petition’s filing. For our purpose, therefore, all that matters is the opening proposition: that rejection “constitutes a breach of such contract”. Outside of bankruptcy, a licensor’s breach does not terminate a licensee’s right to use intellectual property. Lakewood had two principal obligations under its contract with CAM: to provide CAM with motors and cord sets (CAM was to build the rest of the fan) and to pay for the completed fans that CAM drop-shipped to retailers. Suppose that, before the bankruptcy began, Lakewood had broken its promise by failing to provide the motors. CAM might have elected to treat that breach as ending its own obligations, see Uniform" }, { "docid": "18107756", "title": "", "text": "public policy, cannot be used to supersede the Code’s provisions. It remarked: “The Bankruptcy Code standardizes an expansive (and sometimes unruly) area of law, and it is our obligation to interpret the Code clearly and predictably using well established principles of statutory construction.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, — U.S. -, 132 S.Ct. 2065, 2073, 182 L.Ed.2d 967 (2012). Although the bankruptcy judge’s ground of decision is untenable, that does not necessarily require reversal. We need to determine whether Lubrizol correctly understood § 365(g), which specifies the consequences of a rejection under § 365(a). No other court of appeals has agreed with Lubrizol — or for that matter disagreed with it. Exide, the only other appellate case in which the subject came up, was resolved on the ground that the contract was not executory and therefore could not be rejected. (Lubrizol has been cited in other appellate opinions, none of which concerns the effect of rejection on intellectual-property licenses.) Judge Am-bro, who filed a concurring opinion in Ex-ide, concluded that, had the contract been eligible for rejection under § 365(a), the licensee could have continued using the trademarks. 607 F.3d at 964-68. Like Judge Ambro, we too think Lubrizol mistaken. Here is the full text of § 365(g): Except as provided in subsections (h)(2) and (i)(2) of this section, the rejection of an executory contract or unexpired lease of the debtor constitutes a breach of such contract or lease— (1) if such contract or lease has not been assumed under this section or under a plan confirmed under chapter 9, 11,12, or 13 of this title, immediately before the date of the filing of the petition; or (2) if such contract or lease has been assumed under this section or under a plan confirmed under chapter 9, 11, 12, or 13 of this title— (A) if before such rejection the case has not been converted under section 1112, 1208, or 1307 of this title, at the time of such rejection; or (B) if before such rejection the case has been converted under section 1112, 1208, or 1307 of" }, { "docid": "18107755", "title": "", "text": "allow CAM, which invested substantial resources in making Lakewood-branded box fans, to continue using the Lakewood marks “on equitable grounds”. 459 B.R. at 345; see also id. at 343-46. This led to the entry of judgment in CAM’s favor, and Jarden has appealed. What the Bankruptcy Code provides, a judge cannot override by declaring that enforcement would be “inequitable.” See, e.g, Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 115 L.Ed.2d 145 (1991); In re Kmart Corp., 359 F.3d 866, 871 (7th Cir.2004); In re Sinclair, 870 F.2d 1340 (7th Cir.1989). There are hundreds of bankruptcy judges, who have many different ideas about what is equitable in any given situation. Some may think that equity favors licensees’ reliance interests; others may believe that equity favors the creditors, who can realize more of their claims if the debtor can terminate IP licenses. Rights depend, however, on what the Code provides rather than on notions of equity. Recently the Supreme Court emphasized that arguments based on views about the purposes behind the Code, and wise public policy, cannot be used to supersede the Code’s provisions. It remarked: “The Bankruptcy Code standardizes an expansive (and sometimes unruly) area of law, and it is our obligation to interpret the Code clearly and predictably using well established principles of statutory construction.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, — U.S. -, 132 S.Ct. 2065, 2073, 182 L.Ed.2d 967 (2012). Although the bankruptcy judge’s ground of decision is untenable, that does not necessarily require reversal. We need to determine whether Lubrizol correctly understood § 365(g), which specifies the consequences of a rejection under § 365(a). No other court of appeals has agreed with Lubrizol — or for that matter disagreed with it. Exide, the only other appellate case in which the subject came up, was resolved on the ground that the contract was not executory and therefore could not be rejected. (Lubrizol has been cited in other appellate opinions, none of which concerns the effect of rejection on intellectual-property licenses.) Judge Am-bro, who filed a concurring opinion in Ex-ide, concluded that, had the contract" }, { "docid": "10241062", "title": "", "text": "that date. CONCLUSIONS OF LAW Section 365 of the Bankruptcy Code provides, in relevant part: (a) Except as provided in section 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. (d)(2) In a case under Chapter 9, 11, or 13 of this title, the trustee may assume or reject an executory contract or unexpired lease of residential real property or of personal property of the debtor at any time before the confirmation of a plan but the court, on request of any party to such contract or lease, may order the trustee to determine within a specified period of time whether to assume or reject such contract or lease. 11 U.S.C. § 365. The parties have stipulated and the Court makes a finding that the Insurance Contracts at issue in this matter are exec-utory contracts. Though there is no precise definition of what contracts are exec-utory, they are generally contracts on which performance remains due to some extent on both sides. See In re B. Siegel Co., 51 B.R. 159 (Bankr.E.D.Mich.1985). In re New England Carpet Co., 18 B.R. 514 (Bankr.D.Vt.1982); In re Reda, 54 B.R. 871 (Bankr.N.D.Ill.1985). As there is a continuing obligation on behalf of Robins to continue to make premium payments through its agent J & H and a concurrent obligation on the part of J & H to go forward with its duties as an agent, the Insurance Contracts are and were clearly executory on the date Robins filed its petition for relief under Chapter 11. Section 365 is a special provision in the Bankruptcy Code which gives the trustee or the debtor-in-possession the authority to determine which contracts it wishes to assume or reject. The provision permits the debtor-in-possession to avoid contracts which are burdensome and to retain others which it believes are beneficial to the reorganization effort. In re G-N Partners, 48 B.R. 462 (Bankr.D.Minn.1985). This case is somewhat unusual in that it is before the Court" }, { "docid": "4556500", "title": "", "text": "makes a factual finding about the parties’ interest in [a] security deposit so that the court could determine the issue of whether that deposit was part of the bankruptcy estate. This necessary finding does not convert the core issue of whether something is property of the estate into a non-core proceeding.... This finding did not adjudicate any independent right of the appellees outside bankruptcy.... Stem did not hold that a bankruptcy judge lacks authority to enter judgment regarding what property is included in the estate. [Debtors’] reliance on Stem is therefore misplaced.”); BankUnited Fin. Corp. v. FDIC (In re BankUnited Fin. Corp.), 462 B.R. 885, 893-94 (Bankr.S.D.Fla.2011) (“Contrary to the FDIC-R’s argument, what is or is not property of a bankruptcy estate is an issue that stems from the bankruptcy itself ... since the concept of what is property of a bankruptcy estate does not exist outside of a bankruptcy case. Moreover, the fact that the determination of whether the Tax Refunds are property of the estate is determined under non-bankruptcy law and is an issue that could be resolved in a non-bankruptcy forum is irrelevant since the issue of what is property of the estate is virtually always a matter of state law or other non-bankruptcy law.”); Szilagyi v. Chi. Am. Mfg., LLC (In re Lakewood Eng’g & Mfg. Co.), 459 B.R. 306, 312 (Bankr.N.D.Ill.2011) (“[T]he principal issues in the adversary proceeding are whether [Chicago American Manufacturing, LLC] has a valid license to use certain Lakewood marks and patents under Illinois law and whether any such license was terminated when the Bankruptcy Court approved the rejection of CAM’s purported license under 11 U.S.C. § 365.... [T]his court is ruling only on claims ‘derived from or dependent upon bankruptcy law,’ unlike the state law tort action at issue in Stem .... In the course of this Memorandum Opinion, this court interprets a contract under principles described in Illinois law, and then determines the effect of rejection of that contract under bankruptcy law. Rejection of a contract and the effects thereof are creations purely of bankruptcy law. This action clearly ‘stems" }, { "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": "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": "19296819", "title": "", "text": "for alleged infringement of Plaintiffs’ patent and trademark rights. CAM Mot. for Withdrawal of the Reference, Szilagyi et al. v. Chicago American Manufacturing, LLC et al., 09 CV 5779, ECF No. 1. Such rights do not arise under Title 11, which is federal bankruptcy law. The district court denied the motion to withdraw the reference, noting that it was possible that resolution of the issue of the effect of rejection of the Supply Agreement could “resolve, or at least simplify, some or all of the non-bankruptcy issues in the case.” Minute Order, 09 CV 5779, ECF No. 14. That is exactly what transpired. As Plaintiffs anticipated, “the principal issues in the adversary proceeding are whether CAM has a valid license to use certain Lakewood marks and patents under Illinois law and whether any such license was terminated when the Bankruptcy Court approved the rejection of CAM’s purported license under 11 U.S.C. § 365.” Id. In the end, the district court’s prediction was fulfilled; this court is ruling only on claims “derived from or dependent upon bankruptcy law,” unlike the state law tort action at issue in Stern v. Marshall. Stern, 131 S.Ct. at 2618. In the course of this Memorandum Opinion, this court interprets a contract under principles described in Illinois law, and then determines the effect of rejection of that contract under bankruptcy law. Rejection of a contract and the effects thereof are creations purely of bankruptcy law. This action clearly “stems from the bankruptcy itself.” Id. There is a discussion in this Memorandum Opinion of CAM’s proof of claim, but only insofar as it relates to whether CAM elected to retain its rights under bankruptcy law; there are no counterclaims being litigated. As District Judge Dow stated in denying CAM’s motion to withdraw the reference: “The issues concerning the rejection of the supply agreement and CAM’s asserted license rights under that agreement are core proceedings.” Minute Order, 09 CV 5779, ECF No. 14. For all of the reasons described above, this is a core proceeding, and this court has jurisdiction to enter a final judgment on the complaint." }, { "docid": "12599378", "title": "", "text": "this court has constitutional authority under the logic of Apex Express to enter final judgment on the Trustee's claim, whether or not the turnover action is core under Section 157. . This conclusion is reinforced by the fact that turnover actions pursuant to Section 542 are included with the list of avoidance and recovery actions in Section 502(d) that may form the basis of the disallowance of a claim. 11 U.S.C. § 502(d). . See In re Byce, 2011 WL 6210938, at *2 (D.Idaho Dec. 14, 2011) (citing In re Salander O’Reilly Galleries, 453 B.R. 106, 117 (Bankr.S.D.N.Y.2011)) (“The bankruptcy court thus has the constitutional authority to finally determine JustMed’s claim-including state-law issues that arise within that claim. Stem did not hold that the bankruptcy court may not rule on state law issues when determining a proof of claim.”); Fleury v. Specialized Loan Servicing, LLC, 2011 WL 4851141, at *2 (Bankr.E.D.Cal. Oct. 6, 2011) (\"The question, as framed by the Supreme Court in Stem is, whether the action at issue stems from the bankruptcy itself or would necessarily be resolved in the claims allowance process. Here, the validity of the deed of trust, which creates the secured claim, is an issue that would plainly be resolved in the claims allowance process.”); In re GB Herndon & Assocs., Inc., 459 B.R. 148, 164 (Bankr.D.Colo.2011) (debtor's counterclaims were necessarily resolved by resolution of creditor’s proof of claim, such that court had authority to enter final order on debtor's counterclaims); In re Olde Prairie Block Owner, LLC, 457 B.R. 692, 698 (Bankr.N.D.Ill.2011) (because debtor's counterclaims for (1) rescission of contract and (2) breach of contractual duty of good faith and fair dealing had to be resolved in the determination of creditor’s proof of claim based on the contract, they were core proceedings subject to final adjudication by the bankruptcy court). . The allegations are contained in count 12 against Tony and count 9 against Betty. . The allegations are contained in count 13 against Tony and count 10 against Betty. . 28 U.S.C. § 157(b)(2)(C) provides that counterclaims are core proceedings. . See" }, { "docid": "19296820", "title": "", "text": "bankruptcy law,” unlike the state law tort action at issue in Stern v. Marshall. Stern, 131 S.Ct. at 2618. In the course of this Memorandum Opinion, this court interprets a contract under principles described in Illinois law, and then determines the effect of rejection of that contract under bankruptcy law. Rejection of a contract and the effects thereof are creations purely of bankruptcy law. This action clearly “stems from the bankruptcy itself.” Id. There is a discussion in this Memorandum Opinion of CAM’s proof of claim, but only insofar as it relates to whether CAM elected to retain its rights under bankruptcy law; there are no counterclaims being litigated. As District Judge Dow stated in denying CAM’s motion to withdraw the reference: “The issues concerning the rejection of the supply agreement and CAM’s asserted license rights under that agreement are core proceedings.” Minute Order, 09 CV 5779, ECF No. 14. For all of the reasons described above, this is a core proceeding, and this court has jurisdiction to enter a final judgment on the complaint. FINDINGS OF FACT The parties agreed to certain stipulated facts prior to beginning the trial. These facts are incorporated into the court’s Findings of Fact where the court finds them to be relevant. History of CAM and Lakewood Mark Herman and Jeffrey Skinner have been in the steel business together since Skinner joined Herman at Blaekhawk Steel, a steel service center, in 1987. Skinner, p. 192. Herman and Skinner wanted to move from processing into the manufacturing business. Herman, p. 31; Skinner, p. 135. In order to make that move, Herman and Skinner created CAM in 2005. They accomplished this by purchasing the assets of a manufacturer through an assignment for the benefit of creditors. Herman, p. 31; Skinner, pp. 134-135. CAM is owned by Herman (60%), members of Herman’s family (30%) and Skinner (10%). Skinner, p. 133. Prior to 2008, Lakewood was one of the three largest manufacturers of box fans in the United States. Stipulated Facts, ¶ 1. Box fans are one of eight or nine different types of fans within the portable" }, { "docid": "4401463", "title": "", "text": "MEMORANDUM OPINION MARY F. WALRATH, Bankruptcy Judge. This matter is before the Court on the Motion of the Debtors for Order Authorizing the Debtors to Reject Certain Unexpired Leases and Executory Contracts. The Motion is opposed by one of the contract parties, Sawgrass Land Associates (“Sawgrass”) which asserts that the agreement with it (a right of first refusal) is not an executory contract subject to rejection by the Debtors. For the reasons set forth below we grant the Motion. I. FACTUAL BACKGROUND This case was commenced by the filing of voluntary petitions under chapter 11 of the Bankruptcy Code on February 20, 2002, by Kellstrom Industries, Inc., KCA, Inc. f/k/a Kellstrom Commercial Aircraft, Inc., KC-I, Inc. f/k/a Kellstrom Solair, Inc., CAP-I, Inc. f/k/a Certified Aircraft Parts, Inc., Aircraft I, Inc. f/k/a Aircraft 21801, Inc., Aircraft II, Inc. f/k/a Aircraft 21805, Inc.,' DC-9 Aircraft Holdings, L.L.C. and DC-9 Aircraft Holdings, II, L.L.C. (collectively “the Debtors”). On September 5, 2002, the Debtors filed a Motion for Order Authorizing the Debtors to Reject Certain Unexpired Leases and Executory Contracts (“the Rejection Motion”). An objection to that Motion was filed by, inter alia, Sawgrass. A hearing was held on the Rejection Motion on September 23, 2002, at which time we heard oral argument. We allowed the parties to file briefs in support of their positions which they did on September 30 and October 7, 2002, respectively. II. JURISDICTION This Court has jurisdiction pursuant to 28 U.S.C. § 1334. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (M) and (O). III. DISCUSSION Sawgrass asserts that the contract with it constitutes a right of first refusal obligating the Debtors to notify Sawgrass of any offer to purchase the property and to permit Sawgrass to purchase that property if it matches the price. It asserts that such a contract is not an executory contract and cannot be rejected pursuant to section 365. As authority it cites the case of In re Bergt, 241 B.R. 17 (Bankr.D.Alaska 1999). The Bergt Court held that a right of first refusal is similar to an option to sell real" }, { "docid": "4556497", "title": "", "text": "is property of the estate are core); Koken v. Reliance Grp. Holdings, Inc. (In re Reliance Grp. Holdings, Inc.), 273 B.R. 374, 394-95 (Bankr.E.D.Pa.2002) (proceeding to determine whether certain property rights are property of the estate under section 541 is core, even if determination rests upon interpretation of state law); Knopfler v. Schraiber (In re Schraiber), 97 B.R. 937, 939-40 (Bankr.N.D.Ill.1989) (concluding that bankruptcy court has core jurisdiction to determine what property of estate is and can apply state law). Determining whether a contract is property of the estate is also necessary before determining whether a contract may be assumed or rejected, which is likewise a determination within the “core” jurisdiction of the .bankruptcy court. See In re Helm, 335 B.R. 528, 531 (Bankr.S.D.N.Y.2006) (“Motions to assume or reject executory contracts are core proceedings pursuant to 28 U.S.C. § 157(b)(2)(A) and (O), as ‘matters concerning the administration of the estate’ and ‘other proceedings affecting the liquidation of the assets of the estate.... ’ ”); Toledano v. Kittay (In re Toledano), 299 B.R. 284, 293 (Bankr.S.D.N.Y.2003) (finding that a debtor’s legal interests in her lease were property of the estate and could thus be assumed pursuant to section 365). After the Supreme Court’s decision in Stern v. Marshall, — U.S.-, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), determining that a matter falls within the bankruptcy court’s core jurisdiction is not the end of the inquiry however, as there are certain core matters in which a bankruptcy court may not enter a final judgment consistent with Article III of the U.S. Constitution. No such limitation or prohibition applies to the issues resolved in the Adversary Proceeding. In In re Salander O'Reilly Galleries, 453 B.R. 106 (Bankr.S.D.N.Y.2011), the court held that the bankruptcy court had the constitutional authority to enter a final judgment whether artwork consigned to the debtor was property of the estate, even if making that determination required the bankruptcy court to apply state law. The court stated: whether the [artwork] was property of the debtor at the time the case was commenced ... is an essential and inseparable element of" }, { "docid": "13230959", "title": "", "text": "statement that only Article III judges may enter final judgments in core discharge-ability actions. Even in the few cases we have located suggesting an expansive interpretation of Stem, the courts generally limit their concerns to those actions in bankruptcy courts that seek to augment the bankruptcy estate at the expense of third parties, primarily fraudulent conveyance avoidance actions, because those legal actions seek through a money judgment to take the defendant’s property and that adjudication can only be made by a member of the independent Article III judiciary. See e.g., Meoli v. Huntington Nat’l Bank (In re Teleservices Group, Inc.), 456 B.R. 318, 328 n. 59 (Bankr.W.D.Mich.2011) (holding that the bankruptcy court could not adjudicate the debtor’s fraudulent conveyance proceeding against, a bank because “only an Article III judge can enter a judgment associated with the estate’s recovery of contract and tort claims to augment the estate ... if the relief sought by the estate included the involuntary recovery of property from a third party”); In re Canopy Financial, Inc., 464 B.R. 770 (Bankr.N.D.Ill.2011) (holding that the bankruptcy court could not adjudicate through final orders a fraudulent conveyance action); In re Blixseth, 2011 WL 3274042 (Bankr.D.Mont. Aug. 1, 2011) (pursuant to Stern v. Marshall, giving parties fourteen days in which to request that the district court withdraw the reference to the bankruptcy court of such action, or the court would dismiss the fraudulent conveyance claims for lack of subject matter jurisdiction), but see Samson v. Blix-seth (In re Blixseth), 463 B.R. 896 (Bankr. D.Mont.2012) (modifying prior holding). In contrast to the decisions of these courts, a significant majority of decisions rendered since Stem follow Chief Justice Robert’s admonition that the decision be applied narrowly. See Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626, 644-46 (Bankr.D.Del.2012) (“The Court adopts the Narrow Interpretation and holds that Stem only removed a non-Article III court’s authority to finally adjudicate one type of core matter, a debtor’s state law counterclaim asserted under § 157(b)(2)(C). By extension, the Court concludes that Stem does not remove the bankruptcy courts’ authority to" }, { "docid": "4556501", "title": "", "text": "issue that could be resolved in a non-bankruptcy forum is irrelevant since the issue of what is property of the estate is virtually always a matter of state law or other non-bankruptcy law.”); Szilagyi v. Chi. Am. Mfg., LLC (In re Lakewood Eng’g & Mfg. Co.), 459 B.R. 306, 312 (Bankr.N.D.Ill.2011) (“[T]he principal issues in the adversary proceeding are whether [Chicago American Manufacturing, LLC] has a valid license to use certain Lakewood marks and patents under Illinois law and whether any such license was terminated when the Bankruptcy Court approved the rejection of CAM’s purported license under 11 U.S.C. § 365.... [T]his court is ruling only on claims ‘derived from or dependent upon bankruptcy law,’ unlike the state law tort action at issue in Stem .... In the course of this Memorandum Opinion, this court interprets a contract under principles described in Illinois law, and then determines the effect of rejection of that contract under bankruptcy law. Rejection of a contract and the effects thereof are creations purely of bankruptcy law. This action clearly ‘stems from the bankruptcy itself.’ ”). B. Paymentech Has Not Adequately Shown that Cause Exists to Lift the Automatic Stay The commencement of a bankruptcy case imposes an automatic stay on all litigation against the debtor. 11 U.S.C. § 362(a). However, pursuant to section 362(d) of the Bankruptcy Code, a party in interest can seek relief from the automatic stay. Section 362(d), in relevant part, provides: On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay— (1) for cause including the lack of adequate protection of an interest in property of such party in interest; (2) with respect to a stay of an act against property under subsection (a) of this section, if (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. 11 U.S.C. § 362(d). The Second Circuit has observed that “[n]either the statute" }, { "docid": "12599328", "title": "", "text": "deprived of subject matter jurisdiction simply because resolution of the lawsuit may require the application of state law.”); In re Salander O’Reilly Galleries, 453 B.R. 106, 121 (Bankr.S.D.N.Y.2011) (“The jurisdiction of the bankruptcy court depends on whether the issue to be decided arises in or under the Bankruptcy Code, such as whether a claim will be allowed, not whether state law is implicated.”); see also In the Matter of Kakolewski, 29 B.R. 572, 573-74 (Bankr.W.D.Mo.1983) (“By virtue of section 542(b), supra, an action [to collect an account receivable] is made to arise under bankruptcy law. And this is so even though actions on account and debt and contract generally arise under state law, for the provisions of section 542(b) are sufficient to arrogate the general law concepts and transform them into bankruptcy law.”); 28 U.S.C. § 157(b)(3) (“A determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by state law.”). Based on the facts before the Court, Apex Express does not dictate the outcome in this case. Having determined that the claim is core under the statute, the Court must next determine if these actions “stem[] from the bankruptcy itself or would necessarily be resolved in the claims allowance process.” Stern, 131 S.Ct. at 2618. Since Stern, at least one court has found a turnover action to be a bankruptcy cause of action. See In re McCrory, 2011 WL 4005455, at *1 (“Proceedings involving the turnover of property of the bankruptcy estate are core proceedings that the court may hear and determine under 28 U.S.C. § 157(b)(1) and (b)(2)(E). The matter at issue is one that ‘stems from the bankruptcy itself that is within this court’s jurisdiction to decide.”). This conclusion is supported by the fact that actions for turnover occur exclusively under the Bankruptcy Code. See In re Pegasus Gold Corp., 394 F.3d 1189, 1193 (9th Cir.2005). As previously discussed, the Trustee’s complaint states a valid claim for turnover. Pursuant to Stern, the Court has the constitutional authority to enter a final judgment regarding turnover" }, { "docid": "20247842", "title": "", "text": "the Debtor be required to accept or reject such agreements in accordance with 11 U.S.C. § 365. The Plaintiffs third cause of action asks the Court to determine whether the Plaintiff is entitled to an administrative claim pursuant to 11 U.S.C. § 503(b)(9). Adjudicating the causes of action brought by the Plaintiff involves both the determination of the validity, extent, and priority of liens, and the allowance or dis- allowance of claims against the estate. Such matters are deemed by bankruptcy law to be core proceedings pursuant to 28 U.S.C. § 157(b)(2)(B)/(K). According on the Motion to Dismiss brought by Agstar, this Court has jurisdiction to enter final orders and judgments. 28 U.S.C. § 157(b)(1). LEGAL DISCUSSION The gravamen of the Plaintiffs first cause of actions seeks a determination that the agreement for corn silage, as executed between himself and the Debtor, be classified as an executory contract for purposes of bankruptcy law. Under bankruptcy law, a contract which is executory in nature is subject to § 865 of the Code. This section affords the trustee — and by extension, a debtor-in-possession — the power to assume or reject executory contracts (as well as leases) to which the debtor was a party prior to the commencement of the bankruptcy case. 11 U.S.C. § 365(a). The assessment of whether a contract is executory is normally assessed as of the petition date. COR Route 5 Co., LLC v. Penn Traffic Co. (In re Penn Traffic Co.), 524 F.3d 373, 381 (2nd Cir.2008). Compare In re Pesce Baking Co., Inc., 43 B.R. 949, 957 (Bankr.N.D.Ohio 1984) (“critical date for determining the executory nature of a contract is the date on which the bankruptcy court considers the debtor’s application.”). For purposes of § 365, the decision to reject a contract is, in effect, a decision to breach the contract. 11 U.S.C. § 365(g). By comparison, the assumption of an executory contract operates so as to require that the other party to the contact continue to perform those obligations remaining due under the contract. COR Route 5 Co., LLC v. Penn Traffic Co. (In re" }, { "docid": "13230965", "title": "", "text": "the bankruptcy court is without the constitutional power to liquidate the amount of such claims. Again, this contention lacks support in the case law. In contrast, at least four decisions specifically address, in light of Stem, the authority of the bankruptcy court to liquidate a creditor’s state law claim, and to enter a final money judgment, in actions to determine nondischargeability under § 523(a). In In re Ueberroth, a bankruptcy court believed that, in view of Stem, it did not have authority to enter a monetary judgment with a nondischargeability judgment, and submitted a report and recommendation to the district court so it could do so. Mich. St. Univ. Fed. Credit Onion v. Ueberroth (In re Ueberroth), 2011 Bankr.LEXIS 5136 (Bankr.W.D.Mich. Dec. 19, 2011). Within a matter of days, the district court held that, “[W]hile the Court acknowledges the uncertainty Stem created regarding the constitutional authority of bankruptcy courts to enter final judgment in certain proceedings, the Court does not believe Stem affects the Bankruptcy Court’s authority to enter a default judgment in this action.” The district court considered the unnecessary report and recommendation of the bankruptcy court to be harmless error and simply entered judgments in accordance with that report as a matter of judicial economy. Mich. St. Univ. Fed. Credit Union v. Ueberroth (In re Ueberroth), 2012 WL 8021719, at *1, 2012 U.S Dist. LEXIS 12, at *1 (W.D.Mich. January 8, 2012). The Farooqi case, discussed above, analyzed the issue under the public rights exception: “[A] right closely integrated into a public regulatory scheme may be resolved by a non-Artiele III tribunal.” Farooqi, 464 B.R. at 312 (quoting Thomas v. Union Carbide Agricultural Prods. Co., 473 U.S. 568, 593, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)). The Farooqi court then reasoned that liquidating state law claims is “closely integrated” into the bankruptcy code because the court has to determine the claim before it can logically determine that it is nondischargeable. Id. In Dragisic v. Boricich (In re Boricich), 464 B.R. 335, 336-337 (Bankr.N.D.Ill.2011), the bankruptcy court noted that adjudications of the dischargeability of debts have usually been accompanied" }, { "docid": "12349472", "title": "", "text": "order to participate in distributions from [the debtor’s] bankruptcy estate.” In re Carroll, 464 B.R. at 312. Resolving the state-law claims was “closely intertwined” with the bankruptcy-law issues because the bankruptcy court had to resolve the state-law claims to decide whether the resulting liability was an exception to discharge under 11 U.S.C. § 523(a)(4) and (a)(6). The bankruptcy court has exclusive jurisdiction to determine dischargeability. See In re Schwag er, 121 F.3d 177, 181 (5th Cir.1997). The adversary claims were “part of the proceedings in bankruptcy” and did not “concern controversies arising out of’ or “augment[ing]” it. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 56, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989) (quotation marks omitted). The bankruptcy court held Cowin- liable and entered judgment against him on the state-law claims as part of determining whether the debts stemming from those claims were dischargeable. The bankruptcy court did not improperly exercise “the judicial power of the United States.” U.S. Const, art. Ill, § 1. Case law supports this conclusion. The circuit courts addressing the effect of Stem on a bankruptcy court’s exercise of jurisdiction under 28 U.S.C. § 157(b)(2)(I) have held that Stem does not make a bankruptcy court’s entry of judgment on nondischargeability unconstitutional. In re Deitz, 760 F.3d 1038, 1050 (9th Cir.2014) (“[E]ven after Stem, the bankruptcy court had the constitutional authority to enter a final judgment determining both the amount of [the plaintiffs] damage claims against [the debtor], and determining that those claims were excepted from discharge.”); In re Hart, 564 Fed.Appx. 773, 776 (6th Cir.2014) (unpublished) (“Stem does not strip the bankruptcy court of its constitutional authority to enter a final monetary judgment in this dischargeability action....”). Several bankruptcy courts within the Fifth Circuit have followed this approach. In re Carroll, 464 B.R. 293, 311-12 (Bankr.N.D.Tex.2011); In re Soo Bin Kim, 2011 WL 2708985, Adv. No. 11-5020-C, at *2 n. 2 (Bankr.W.D.Tex. July 11, 2011). The Fifth Circuit has twice declined to decide whether Stem’s holding is limited to state-law counterclaims, or whether Stem also applies to other core proceedings under 28 U.S.C. § 157(b)(2). In re" } ]

[ { "docid": "6016548", "title": "", "text": "to achieve judicial economy by preventing a multiplicity of actions. Warshawsky & Co. v. Arcata Nat. Corp., 552 F.2d 1257, 1261 (7th Cir.1977); In re Oil Spill, 491 F.Supp. 161, 168 (N.D.Ill.1979). A counterclaim arises out of the same transaction or occurrence when it is “logically related” to the opposing party’s claim. Moore v. New York Cotton Exchange, 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750 (1926); Warshawsky & Co. v. Arcata Nat. Corp., supra, 552 F.2d at 1261. A logical relationship will be found to exist where separate trials on each of the respective claims would involve a substantial duplication of effort and time by the parties and the court. Relevant considerations include whether the claims involve: (1) many of the same factual issues; (2) the same factual and legal issues; or (3) are offshoots of the same basic controversy between the parties. Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 634 (3d Cir.1961); Lewis Mfg. Co. v. Chisholm-Ryder Co., 82 F.R.D. 745, 748-49 (W.D.Pa.1979). USM admits that its theory of antitrust liability is grounded upon its allegation that the Villo patent was fraudulently procured. Had SPS raised the fraudulent procurement claim in the 1969 infringement litigation, the Villo patent would have been successfully challenged. See USM Corp. v. SPS Technologies, Inc., 694 F.2d 505, 508 (7th Cir.1982). Since the fraud allegations necessary to invalidate the Villo patent are identical to the fraud allegations which provide the basis for the antitrust claim (Amended Complaint, ¶ s 17-20), there can be no doubt that these claims, although grounded in different legal theories, are essentially identical. Furthermore, the fraudulent procurement of a patent claim, whether asserted as a defense to an infringement suit or brought separately as an antitrust claim, is “logically related” to a claim for patent infringement. As such, that claim must be presented under Rule 13(a) or it is forever barred. Therefore, USM’s antitrust claim under Count V of the Amended Complaint cannot be maintained in this suit because it was a compulsory counterclaim to SPS’ claim in the 1969 infringement litigation." } ]

[ { "docid": "6629371", "title": "", "text": "court cannot acquire jurisdiction.” A counterclaim that is compulsory but not pleaded in accordance with the rule, is thereafter barred. E.g., id., Notes of Advisory Committee on Rules, Note 7; Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 469 n. 2, 94 S.Ct. 2504, 2506 n. 2, 41 L.Ed.2d 243 (1974). Bankruptcy Rule 7013 provides that Rule 13(a), Fed.R.Civ.P., shall also apply to adversary proceedings in bankruptcy, but provides a more liberal escape from the effect. of failing to plead a compulsory counterclaim. Under the Bankruptcy Rule, “a trustee or debtor in possession who fails to plead a counterclaim through oversight, inadvertence, or excusable neglect, or when justice so requires, may by leave of court amend the pleading, or commence a new adversary proceeding or separate action.” To fall under either rule, the counterclaim must arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim. The prevailing test, and that adopted in this circuit, for determining whether a claim arises out of the same transaction or occurrence is the “logical relationship” test. E.g., Maddox v. Kentucky Finance Co., Inc., 736 F.2d 380, 382 (6th Cir.1984). Originally formulated in Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926), the test defines “transaction” flexibility to “comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.” Id. at 610, 46 S.Ct. at 371. What constitutes a “logical relationship” for the purposes of the rule has not been defined precisely. The Third Circuit has provided the classic definition: The phrase “logical relationship” is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim when separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic" }, { "docid": "23344531", "title": "", "text": "in the federal claim are not named parties at all in the state claims.” See Appellee’s Addendum E at 2. Secondly, he found that it was not necessary for the jury in the federal case to decide the issues upon which the defendants’ claim are based in the state court actions. Id. Finally, the district judge concluded that: The Plaintiffs make a long argument to the effect that their victory here in the Federal Court signaled agreement with their argument that the Defendants carried out a long vendetta against them because of their political affiliation. They argued, too, that this vendetta included many of the items referred to in the State Court action. While some of that may be accurate, nonetheless, the issues and the parties in the State Court actions are much different from what was at stake in the Federal Court action and thus, we decline to grant the motion to enjoin the State Court actions. Id. We agree that the state actions are sufficiently distinct so as to conclude that they are not the proper subjects for compulsory counterclaims under Fed.R.Civ.P. 13. In Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631 (3d Cir.1961), we stated that “a counterclaim is compulsory if it bears a ‘logical relationship’ to an opposing party’s claim.” Id. at 634 (citations omitted). We stated further that “a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of ef-fort_” 286 F.2d at 634. In the federal action, the cause of action is against not only the MCTA, but six of its members, its solicitor and two members of the Board of County Commissioners of Monroe County and it complains of a violation of federally protected interests. In the state action, the sole plaintiff is the MCTA. The other parties defending in the federal action are not involved in the state case. Consequently, there would be no substantial duplication of effort. The elements of the claims are likewise distinct. On the one hand are federally protected interests of" }, { "docid": "792413", "title": "", "text": "No. 4,376,978 (“the ’978 patent”) which issued well after the commencement of this litigation. The new Second Counterclaim alleges that Paine Webber’s use of “RMA” infringes Merrill Lynch’s CMA service mark registration. The Third Counterclaim charges Paine Webber with misappropriating Merrill Lynch’s trade secrets, described in defendant’s brief, as relating “to the marketing and internal administration of [its] central assets accounts.” Paine Webber does not oppose adding the first two counterclaims for patent and trademark infringement but does oppose the Third Counterclaim of misappropriating trade secrets. First, Merrill Lynch contends that its charge of trade-secret misappropriation is a compulsory counterclaim and therefore the Court has ancillary jurisdiction over that counterclaim. Nationwide Mutual Fire Insurance v. T. & D. Cottage Auto Parts & Service, Inc., 705 F.2d 685, 687 (3d Cir.1983). The Court disagrees. Rule 13(a), Fed.R.Civ.P., defines a compulsory counterclaim as one which: “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim____” The Court of Appeals for the Third Circuit has outlined a test for determining whether a counterclaim is compulsory, as follows: We have indicated that a counterclaim is compulsory if it bears a “logical relationship” to an opposing party’s claim. Zion v. Sentry Safety Control Corp., 3 Cir., 1958, 258 F.2d 31. See also United Artists Corp. v. Masterpiece Productions, Inc., 2 Cir., 1955, 221 F.2d 213, 216. The phrase “logical relationship” is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counterclaimant be permitted to maintain his cause of action. Indeed the doctrine of res judicata compels the counter-claimant to assert his claim in the same suit for" }, { "docid": "2400859", "title": "", "text": "also United Artists Corp. v. Masterpiece Productions, Inc., 2 Cir., 1955, 221 F.2d 213, 216. The phrase ‘logical relationship’ is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counterclaimant be permitted to maintain his cause of action.” Here the “logical relationship”, as defined in Great Lakes Rubber Corp. v. Herbert Cooper Co., Inc., supra,, between the unfair competition allegations in the complaint and in the proposed amendment, is plain. The essence of both is that the parties worked together in matters relating to freeze-dried coffee and that during this time each misappropriated information from the other relating to this subject. The opposing claims of unfair competition involve many of the same factual and legal issues and are offshoots of the same basic controversy. Plaintiff points out that Rule 13(a), Fed.R. Civ.P., which makes mandatory the pleading of a compulsory counterclaim contains an exception inasmuch as it states: “But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action. * * * ” Plaintiff points out that the claim sought to be introduced by the proposed amendment to the counterclaim was the subject of a pending action in the Supreme Court of New York when this action was begun and that it has never been dismissed. Therefore, plaintiff argues the exception to Rule 13(a) applies and consequently the proposed amendment does not meet the test required for a compulsory counterclaim. For this reason, plaintiff concludes that no Federal jurisdiction attaches to authorize the filing of the proposed amendment to the counterclaim. This argument is" }, { "docid": "22828207", "title": "", "text": "ancillary jurisdiction are designed to abolish the same evil, viz., piecemeal litigation in the federal courts. We have indicated that a counterclaim is compulsory if it bears a “logical relationship” to an opposing party’s claim. (Citing cases.) The phrase “logical relationship” is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counterclaimant be permitted to maintain his cause of action. * * * It would be fair to say, therefore, that a claim is ancillary when it bears a logical relationship to the aggregate core of operative facts which constitutes the main claim over which the court has an independent basis of federal jurisdiction. However, the type of relationship contemplated by the phrase “logical relationship” remains somewhat clouded. Perhaps the simplest way to determine the type of the nexus that must necessarily exist between the main claim and another claim for the other claim to be considered ancillary is to examine the present extent of the application of the doctrine to the various devices of the Federal Rules allowing joinder of claims. While it is well established that a compulsory counterclaim under Rule 13(a) is within the ancillary jurisdiction since it necessarily arises out of the same transaction or occurrence as the original claim, Moore v. New York Cotton Exchange, supra, a permissive counterclaim under Rule 13(b) requires an independent ground of federal jurisdiction since it does not arise out of the same transaction or occurrence as the original claim, Camper & Nicholsons, Ltd. v. Yacht “Fontainebleau II” S.D. Fla., 1968, 292 F.Supp. 734, except where a setoff is involved. Fraser v. Astra Steamship Corp., S.D.N.Y., 1955, 18 F.R.D." }, { "docid": "22076628", "title": "", "text": "270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750; 3 Moore, Fed.Practice, pp. 39-41 (2d ed. 1948). Similarly, a counterclaim that arises out of the transaction or occurrence that is the subject matter of an opposing party’s claim is a “compulsory counterclaim” within the meaning of Rule 13(a) of the Federal Rules of Civil Procedure. It is stated frequently that the determination of ancillary jurisdiction of a counterclaim in a federal court must turn on whether the counterclaim is compulsory within the meaning of Rule 13(a). Such a statement of the law relating to ancillary jurisdiction of counterclaims is not intended to suggest that Rule 13(a) extends the jurisdiction of the federal courts to entertain counterclaims for the Federal Rules of Civil Procedure cannot expand the jurisdiction of the United States courts. What is meant is that the issue of the existence of ancillary jurisdiction and the issue as to whether a counterclaim is compulsory are to be answered by the same test. It is not a coincidence that the same considerations that determine whether a counterclaim is compulsory decide also whether the court has ancillary jurisdiction to adjudicate it. The tests are the same because Rule 13(a) and the doctrine of ancillary jurisdiction are designed to abolish the same evil, viz., piecemeal litigation in the federal courts. We have indicated that a counterclaim is compulsory if it bears a “logical relationship” to an opposing party's claim. Zion v. Sentry Safety Control Corp., 3 Cir., 1958, 258 F.2d 31. See also United Artists Corp. v. Masterpiece Productions, Inc., 2 Cir., 1955, 221 F.2d 213, 216. The phrase “logical relationship” is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness" }, { "docid": "11637515", "title": "", "text": "BESCO in default when the breach occurred, BESCO may have been able to take some action to avoid the duplicative litigation costs that did in fact arise. The opinion concluded: After careful reconsideration, the Court now determines that it was ill advised to find that, under the circumstances described above, it would have been futile and useless to put BESCO in default. The Court recognizes, of course, that it would have been impossible for BESCO to have named Montgomery as an additional insured at such a late hour. Who is to say, however, what actions BESCO would have taken if it had been put in default? To make such a determination at this time would be to engage in dangerous speculation. The Court is in agreement with BESCO’s position that a contrary finding might very well advance a policy which encourages duplicative litigation and costs. This appeal followed. II. WAS MONTGOMERY’S CLAIM A COMPULSORY COUNTERCLAIM? This threshold question was raised during the hearing on BESCO’s motion for new trial and is hinted at in the trial court’s opinion: is Montgomery’s claim one which must have been asserted as a compulsory counterclaim in the Huinker suit? See, Eed.R.Civ.P. 13(a). If so, the present claim for attorney’s fees was waived by Montgomery’s failure to assert it during the Huinker litigation, and it may not be pursued now. Rule 13(a) requires that any claim which “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim” is a compulsory claim and must be asserted, or it will be deemed waived. Fed.R.Civ.P. 13(a). This circuit has adopted the “logical relationship” test to determine if a claim is sufficiently related to the primary claim so as to be compulsory. United States v. Aronson, 617 F.2d 119, 121 (5th Cir.1980). A logical relationship exists when “the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the defendants.” Plant v. Blazer Financial Services, Inc., 598 F.2d 1357, 1361 (5th Cir.1979). The Huinker" }, { "docid": "13115009", "title": "", "text": "I think a problem should exist in instances where a counterclaim arises out of the same transaction or occurrence that is the subject matter of an original claim controlled by state law. If “logically related” to the opposing party’s claim, see Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631 (3d Cir. 1961), such counterclaims are properly characterized as compulsory and, falling within the bounds of ancillary federal jurisdiction, must be asserted in the federal court proceeding on the original claim. Rather, the problem we now confront pertains only where, as here, the Court is asked by way of a defendant’s counterclaim to try a cause of action amounting to no more than a state debt collection suit founded on the same transaction or occurrence that generated plaintiff’s exclusively federal suit to enforce a right or duty conferred or imposed by federal statute. If such a counterclaim is deemed compulsory, it may be, indeed must be, asserted in the federal forum; if deemed permissive, it should be dismissed for lack of jurisdiction. Thus, the Court’s characterization of the counterclaim sub judice will control the disposition of the motion now before it. In Great Lakes Rubber Corp. v. Herbert Cooper Co., supra at 634, the Court of Appeals for the Third Circuit stated the test for determining whether a counterclaim is compulsory vel non as follows: “. . . [A] counterclaim is compulsory if it bears a ‘logical relationship’ to an opposing party’s claim. . . . The phrase ‘logical relationship’ is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counterclaim-ant be permitted to maintain his cause" }, { "docid": "792414", "title": "", "text": "a counterclaim is compulsory, as follows: We have indicated that a counterclaim is compulsory if it bears a “logical relationship” to an opposing party’s claim. Zion v. Sentry Safety Control Corp., 3 Cir., 1958, 258 F.2d 31. See also United Artists Corp. v. Masterpiece Productions, Inc., 2 Cir., 1955, 221 F.2d 213, 216. The phrase “logical relationship” is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counterclaimant be permitted to maintain his cause of action. Indeed the doctrine of res judicata compels the counter-claimant to assert his claim in the same suit for it would be barred if asserted separately, subsequently. Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 634 (3d Cir.1961). Thus an analysis must be made to determine whether the Third Counterclaim involves: (1) many of the same factual issues; (2) the same factual or legal issues; or (3) offshoots of the same basic controversy between the parties. See Xerox Corp. v. SCM Corporation, 576 F.2d 1057, 1059 (3d Cir.1978). Applying this kind of analysis, the Court finds that Merrill Lynch’s trade secret counterclaim bears no logical relationship to the claims asserted in the complaint. The claim asserted by Paine Webber and the tradesecret misappropriation counterclaim of Merrill Lynch are not the same nor is there any indication that there would be a duplication of evidence. Paine Webber’s claim is that the patents involved are invalid, unenforceable and not infringed. The transactions or occurrences involved in Paine Webber’s claim are the activities of Merrill Lynch in obtaining its patents and Paine Webber’s designing and implementing its computer hardware and software which supports its" }, { "docid": "11746156", "title": "", "text": "party was joined. The third party defendant filed a counterclaim against the defendant, as third party plaintiff, for his own personal injuries. In finding. the counterclaim compulsory, Judge John Morgan Davis relied upon the test of “same transaction or occurrence” enunciated in Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631 [3rd Cir. 1961]; We have indicated that a counterclaim is compulsory if it bears a “logical relationship” to an opposing party’s claim * * A counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties fairness and considerations of convenience and of economy require that the counterclaimant be permitted to maintain his cause of action. 286 F.2d at 634. Judge Davis then applied the Great Lakes Rubber test to the facts of Weber, supra, when Applying this test to the case at hand, we are obliged to conclude that the counterclaim of the third party defendant Gerald Schley, although ‘independent’, i. e. for his own damages, does indeed involve ‘many of the same factual issues’ as will be presented in the third party action for contribution. A characterization that they are ‘offshoots of the same basic controversy between the parties’ would be quite accurate. Needless to say, the prosecution of the entire matter in one lawsuit would certainly champion the cause of ‘fairness’. Finally, the consideration of convenience and economy which Judge Biggs has deemed as significant, would be enhanced by the single action. 44 F.R.D. at 230. The failure to assert a compulsory counterclaim precludes its later assertion in another, subsequent lawsuit. In so holding, the federal courts have reasoned that (1) the sheer force of Rule 13(a) prevents later suits, or (2) that the principle of res judicata, apart from the policy of Rule 13(a), precludes the litigation of claims that either" }, { "docid": "4240051", "title": "", "text": "awards or orders; consequently, this Court is said to lack the power in such proceedings to entertain counterclaims, such as the one filed herein, where no specific provision has been made therefor in the statute. In reply to the Brotherhood’s contention, the respondent railroad maintains initially, that its counterclaim is compulsory in nature, thereby indicating that the Court has ancillary jurisdiction over the respondent’s claims for damages. Before determining whether the Court has authority under Section 3, First (p) to entertain questions based upon ancillary jurisdiction, it seems appropriate to first ascertain whether the respondent has filed a counterclaim that is in fact compulsory. The respondent argues that its counterclaim arises out of the same “transaction or occurrence” as the subject matter of the petition, within the meaning of Rule 13(a) of the Federal Rules of Civil Procedure, since the counterclaim arises out of the Bi-otherhood’s alleged illegal strike to enforce the same award of the National Railroad Adjustment Board which the petition seeks to enforce. While it is apparent that a factor, the award of additional wages, is common to the relief sought by both parties, it doe§ not necessarily follow that a relation is thereby created between the claims of the petitioner and the respondent which lays a proper basis for a compulsory counterclaim. It is generally recognized that a counterclaim is compulsory if there exists any logical relation between the initial claim and the counterclaim. 1A Barron & Holtzoff, Federal Practice and Procedure, Section 394; 3 Moore’s Federal Practice, Para. 13.13. The term “logical relation” was clearly defined recently in Great Lakes Rubber Corporation v. Herbert Cooper Co. Inc., 3 Cir., 1961, 286 F.2d 631, when Chief Judge Biggs, on page 634, said: “The phrase ‘logical relationship’ is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues," }, { "docid": "11746155", "title": "", "text": "logical relationship does exist between the claim and the counterclaim. Both involve allegations relating to the obligations and abilities of New Eastwiek to carry forth a specific urban development project, and the plaintiff goes so far as to admit in his brief that ‘It would, of course, be less than candid not to say that both the claim and counterclaim are rooted in the economic failure of New Eastwiek.’ Therefore, we deem the counterclaim compulsory. See Great Lakes Rubber Corp. v. Herbert Cooper, 286 F.2d 631 [3d Cir. 1961]; United Artists Corp. v. Masterpiece Productions, Inc., 221 F.2d 213 [2d Cir. 1955]; Arvey Corp. v. Peterson, 178 F.Supp. 132 [E.D.Pa.1959]; E. J. Kor-vette Co. v. Parker Pen Co., 17 F.R.D. 267 [S.D.N.Y.1955]. See Wright, Estoppel by Rule: The Compulsory Counterclaim under Modern Pleading, 38 Minn.L.Rev. 423 [1954]; 3 Moore, Federal Practice § 13.13; 1A Barron & Holtzoff, Federal Practice & Procedure § 394. 39 F.R.D. at p. 316. Weber v. Weber, 44 F.R.D. 227 [E.D.Pa. 1968], involved an automobile accident action in which a third party was joined. The third party defendant filed a counterclaim against the defendant, as third party plaintiff, for his own personal injuries. In finding. the counterclaim compulsory, Judge John Morgan Davis relied upon the test of “same transaction or occurrence” enunciated in Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631 [3rd Cir. 1961]; We have indicated that a counterclaim is compulsory if it bears a “logical relationship” to an opposing party’s claim * * A counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties fairness and considerations of convenience and of economy require that the counterclaimant be permitted to maintain his cause of action. 286 F.2d at 634. Judge Davis then applied the Great Lakes Rubber test to" }, { "docid": "23182853", "title": "", "text": "1976, the court vacated its earlier injunction. Its Memorandum Opinion and Order balanced the concept of “justice delayed is justice denied” with the consideration that avoiding duplication of effort and resolving related controversies in one proceeding was usually desirable by expressing the court’s belief that the interests of justice and expediency would be served by permitting the parties to proceed in both jurisdictions. II. THE COUNTERCLAIM ISSUE Warshawsky argues that the overwhelming weight of authority clearly requires a finding that the California action constitutes a compulsory counterclaim to the Illinois proceeding. The appellant submits that Arcata’s claims for amounts allegedly due for printing services are logically related to Warshawsky’s own contract claims and that Arcata’s claims stem from a single, continuous course of dealing between the parties. Warshawsky asserts that this “course of dealing” will serve to “give particular meaning to and supplement or qualify” the terms of the parties’ subsequent ad hoc dealings under §§ 1-205(1), (3) of the Uniform Commercial Code. Areata counters that its claims against Warshawsky for the 1976 catalogs are separate from any disputes involving earlier printing. Areata recognizes that the courts have adopted a “logical relation” test, see, e. g., 6 Wright & Miller, Federal Practice and Procedure § 1410, at 42 (1971), regarding the wording of Rule 13(a), Fed.R.Civ.P., but have not abandoned the limitation of compulsory counterclaims to disputes arising out of the same transaction or occurrence. Courts generally have agreed that the words “transaction or occurrence” should be interpreted liberally in order to further the general policies of the federal rules and carry out the philosophy of Rule 13(a). 6 Wright & Miller, supra at § 1410, at 40. The purpose of the rule is to prevent multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of common matters. Southern Construction Co., Inc. v. Pickard, 371 U.S. 57, 60, 83 S.Ct. 108, 9 L.Ed.2d 31 (1962). As a word of flexible meaning, “transaction” may comprehend a series of many occur-' rences, depending not so much upon the immediateness of their connection as upon their" }, { "docid": "4240052", "title": "", "text": "of additional wages, is common to the relief sought by both parties, it doe§ not necessarily follow that a relation is thereby created between the claims of the petitioner and the respondent which lays a proper basis for a compulsory counterclaim. It is generally recognized that a counterclaim is compulsory if there exists any logical relation between the initial claim and the counterclaim. 1A Barron & Holtzoff, Federal Practice and Procedure, Section 394; 3 Moore’s Federal Practice, Para. 13.13. The term “logical relation” was clearly defined recently in Great Lakes Rubber Corporation v. Herbert Cooper Co. Inc., 3 Cir., 1961, 286 F.2d 631, when Chief Judge Biggs, on page 634, said: “The phrase ‘logical relationship’ is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counter-claimant be permitted to maintain his cause of action. Indeed the doctrine of res judicata compels the counterclaimant to assert his claim in the same suit for it would be barred if asserted separately, subsequently.” In the instant case separate trials of the respective parties’ claims would involve substantially varying efforts by the parties and the tribunals, for the petitioner’s requested relief involves judicial review of the administrative award and order, while the respondent’s claim seeks damages for an unlawful strike without regard to the validity of the award and order. Few, if any, of the factual or legal issues can be predicted to be identical. In short, two different basic controversies are involved which would appear to preclude the operation of the doctrine of res judicata. Therefore, it is the opinion of this Court that the requisite logical relationship which gives rise to" }, { "docid": "13115010", "title": "", "text": "the Court’s characterization of the counterclaim sub judice will control the disposition of the motion now before it. In Great Lakes Rubber Corp. v. Herbert Cooper Co., supra at 634, the Court of Appeals for the Third Circuit stated the test for determining whether a counterclaim is compulsory vel non as follows: “. . . [A] counterclaim is compulsory if it bears a ‘logical relationship’ to an opposing party’s claim. . . . The phrase ‘logical relationship’ is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counterclaim-ant be permitted to maintain his cause of action. Indeed the doctrine of res judicata compels the eounterclaimant to assert his claim in the same suit for it would be barred if asserted separately, subsequently.” (citations omitted) The Court’s present inquiry, then, devolves into a question of whether defendant’s debt collection counterclaim bears a “logical relationship” to plaintiff’s claim under the Truth in Lending Act. On a purely transactional level, such a relationship obviously exists: both claim and counterclaim arise out of a singular occurrence, plaintiff’s purchase of airline tickets through the use of his Carte Blanche card. But in these circumstances, I do not consider the presence of transactional identity alone sufficient to establish, for compulsory counterclaim purposes, a logical relationship between plaintiff’s claim and defendant’s counterclaim. Indeed, after careful consideration of this matter, I am persuaded that conventional analysis, undertaken and coupled with a due regard for the imperatives of federal judicial policy, supports the conclusion that the requisite logical relationship is lacking in this case. Plaintiff brings this action exclusively under a federal statute, the Truth in Lending Act." }, { "docid": "20342700", "title": "", "text": "responsively. In Moore, the plaintiff sought equitable relief for alleged antitrust violations, and the defendant counterclaimed to enjoin the plaintiff from purloining cotton quotations. Moore contended that the court lacked jurisdiction over the subject matter of the counterclaim. It was held that the court had jurisdiction because Equity Rule 30 required the counterclaim to be pleaded responsively since it arose out of the transaction originally sued upon. Rule 13(a) is broader in scope than Equity Rule 30 because of the addition of the words “or occurrence” after the word “transaction”. Ever since the Moore case and the adoption of rule 13(a) the courts have expressed a liberal tendency to treat counterclaims as compulsory. The reason for this is to discourage duplication of trial and pretrial efforts. This tendency towards liberality has been approved in Great Lakes Rubber Corporation v. Herbert Cooper Co., 286 F.2d 631 (3d Cir. 1961) where it was held at page 634: “We have indicated that a counterclaim is compulsory if it bears a ‘logical relationship’ to an opposing party’s claim. Zion v. Sentry Safety Control Corp., 3 Cir., 1958, 258 F.2d 31. See also United Artists Corp. v. Masterpiece Productions, Inc., 2 Cir., 1955, 221 F.2d 213, 216. The phrase ‘logical relationship’ is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counterclaimant be permitted to maintain his cause of action. Indeed the doctrine of res judicata compels the counterclaimant to assert his claim in the same suit for it would be barred if asserted separately, subsequently.” At oral argument counsel for all parties acknowledged that truth is a defense to the counts relating to" }, { "docid": "22076629", "title": "", "text": "a counterclaim is compulsory decide also whether the court has ancillary jurisdiction to adjudicate it. The tests are the same because Rule 13(a) and the doctrine of ancillary jurisdiction are designed to abolish the same evil, viz., piecemeal litigation in the federal courts. We have indicated that a counterclaim is compulsory if it bears a “logical relationship” to an opposing party's claim. Zion v. Sentry Safety Control Corp., 3 Cir., 1958, 258 F.2d 31. See also United Artists Corp. v. Masterpiece Productions, Inc., 2 Cir., 1955, 221 F.2d 213, 216. The phrase “logical relationship” is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counter-claimant be permitted to maintain his cause of action. Indeed the doctrine of res judicata compels the counterclaimant to assert his claim in the same suit for it would be barred if asserted separately, subsequently. Cooper alleges that the claims originally asserted in Great Lakes’ amended complaint, reiterated in substance in its counterclaim, are “unjustified” and were brought in “bad faith and without color of right with the sole object of harassing and preventing defendant [Cooper] from competing in the manufacture and sale of flexible hose.” These are the only allegations set out by Cooper’s counterclaim which demonstrate a relationship within the purview of Rule 13(a) to Great Lakes’ amended complaint or counterclaim. But that they do demonstrate a relationship is unquestionable. It is clear that a determination that. Cooper’s claims that the claims asserted in Great Lakes’ amended complaint and reiterated in substance in its counterclaim are harassing will entail an extensive airing of the facts and the law relating to Great Lakes’ counterclaim." }, { "docid": "1744671", "title": "", "text": "jurisdiction and the issue as to whether a counterclaim is compulsory are to be answered by the same test. It is not a coincidence that the same considerations that determine whether a counterclaim is compulsory decide also whether the court has ancillary jurisdiction to adjudicate it. The tests are the same because Rule 13(a) and the doctrine of ancillary jurisdiction are designed to abolish the same evil, viz., piecemeal litigation in the federal courts. Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 633-34 (3rd Cir.1961); see also Phillips Petroleum Co. v. United States Steel Corp., 566 F.Supp. 1093, 1096-97 (D.Del.1983). A counterclaim is compulsory if “it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Fed.R.Civ.P. 13(a). Courts have held that the Rule 13 standard is satisfied when a “logical relationship” can be established between a counterclaim and one of the claims brought by the opposing party. Great Lakes Rubber Corp., 286 F.2d at 634. Several factors should be considered in evaluating whether a logical relationship exists, including whether separate trials of the different claims would involve a substantial duplication of effort and time and whether the claims and counterclaims involve many of the same factual and legal issues or factual and legal issues that are offshoots of the same basic controversy. See id.; see also Xerox Corp. v. SCM Corp., 576 F.2d 1057, 1059-60 (3rd Cir.1978). “ ‘Transaction or occurrence’ should be interpreted broadly; it is unnecessary that the facts be from the same time or that exactly the same facts will resolve the issues in the complaint and the counterclaim.” Centennial School District v. Independence Blue Cross, 885 F.Supp. 683, 685 (E.D.Pa.1994); see also Metallgesellschaft AG v. Foster Wheeler Energy Corp., 143 F.R.D. 553, 558 (D.Del.1992). Finally, the “logical relation” inquiry is a fact-intensive, case-specific one, resisting the categorization of different couplings of claims and counterclaims as necessarily compulsory or permissive, see Xerox Corp., 576 F.2d at 1060, although “[a]ny counterclaim involving the same patent as involved in the original action usually is considered to arise from" }, { "docid": "2400858", "title": "", "text": "proposed amendment arises out of the same transaction or occurrence which is the subject of the unfair competition claim in the complaint. The subject of ancillary jurisdiction over a counterclaim is discussed at length in Great Lakes Rubber Corp. v. Herbert Cooper Co., Inc., 286 F.2d 631 (3d Cir. 1961). There it was pointed out that Rule 13(a), Fed.R. Civ.P., pertaining to compulsory counterclaims cannot extend the jurisdiction of the Federal Court. It said, nevertheless, that whether ancillary jurisdiction exists and whether a counterclaim is compulsory are to be answered by the same test, and that the same considerations that determine whether a counterclaim is compulsory decide also whether a court has ancillary jurisdiction to adjudicate it. Both, said the Court, are designed to abolish the same evil, i.e., piecemeal litigation in the Federal Courts. Continuing, the Court said (286 F.2d at 634): “We have indicated that a counterclaim is compulsory if it bears a ‘logical relationship’ to an opposing party’s claim. Zion v. Sentry Safety Control Corp., 3 Cir., 1958, 258 F.2d 31. See also United Artists Corp. v. Masterpiece Productions, Inc., 2 Cir., 1955, 221 F.2d 213, 216. The phrase ‘logical relationship’ is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counterclaimant be permitted to maintain his cause of action.” Here the “logical relationship”, as defined in Great Lakes Rubber Corp. v. Herbert Cooper Co., Inc., supra,, between the unfair competition allegations in the complaint and in the proposed amendment, is plain. The essence of both is that the parties worked together in matters relating to freeze-dried coffee and that during this time each misappropriated information" }, { "docid": "22828206", "title": "", "text": "depending not so much upon the immediateness of their connection as upon their logical relationship. So close is the connection between the case sought to be stated in the bill and that set up in the counterclaim, that it only needs the failure of the former to establish the foundation for the latter; but the relief afforded by the dismissal of the bill is not complete without an injunction restraining appellant from continuing to obtain by stealthy appropriation what the court had held it could not have by judicial compulsion. 270 U.S. at 610, 46 S.Ct. at 371 (Emphasis added.) The “logical relationship” test established in Moore was further elaborated on in Great Lakes Rubber Corporation v. Herbert Cooper Co., 3 Cir., 1961, 286 F.2d 631, 633-634, where the court said: * * * the issue of the existence of ancillary jurisdiction and the issue as to whether a counterclaim is compulsory are to be answered by the same test. * * * The tests are the same because Rule 13(a) and the doctrine of ancillary jurisdiction are designed to abolish the same evil, viz., piecemeal litigation in the federal courts. We have indicated that a counterclaim is compulsory if it bears a “logical relationship” to an opposing party’s claim. (Citing cases.) The phrase “logical relationship” is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counterclaimant be permitted to maintain his cause of action. * * * It would be fair to say, therefore, that a claim is ancillary when it bears a logical relationship to the aggregate core of operative facts which constitutes the main claim over" } ]

[ { "docid": "22164282", "title": "", "text": "only whether the plaintiff has proffered evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction. To defeat a motion to dismiss when the court uses this method the plaintiff must make the showing as to every fact required to satisfy “both the forum’s long-arm statute and the due process clause of the Constitution.” U.S.S. Yachts, Inc. v. Ocean Yachts, Inc., 894 F.2d 9, 11 (1st Cir.1990); accord Dakota Industries, Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1389 (8th Cir.1991); American Express International, Inc. v. Mendez-Capellan, 889 F.2d 1175, 1178 (1st Cir.1989); CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364-65 (2d Cir.1986). This standard for deciding a motion to dismiss is commonly referred to as the “prima facie ” standard or a standard requiring a “prima facie” showing. In this Opinion, we use “prima facie ” showing in this sense. The prima facie showing of personal jurisdiction must be based on evidence of specific facts set forth in the record. Kowalski v. Doherty, Wallace, Pillsbury & Murphy, 787 F.2d 7, 9 (1st Cir.1986). The “plaintiff must go beyond the pleadings and make affirmative proof.” Chlebda v. H.E. Fortna & Bro. Inc., 609 F.2d 1022, 1024 (1st Cir.1979); see also Serras v. First Tennessee Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir.1989) (noting that plaintiffs may not rest on their pleadings to make the prima facie showing). We recognize that some courts — but a minority — appear to hold that allegations in a complaint, unsupported by any evidence in the record before the court, are sufficient to make a prima facie showing of personal jurisdiction so long as the defendant does not present evidence to contradict the allegations. See, e.g., Turnock v. Cope, 816 F.2d 332, 333 (7th Cir.1987); Dowless v. Warren-Rupp Houdailles, Inc., 800 F.2d 1305, 1307 (4th Cir.1986). It has long been the rule of this circuit, however, that plaintiffs may not rely on unsupported allegations in their pleadings to make a prima facie showing of personal jurisdiction. See Chlebda, 609 F.2d at 1024 (observing that believing that jurisdictional" } ]

[ { "docid": "9387994", "title": "", "text": "present action. At the time the action was commenced, Riverside owed MR $103,432.17. M-R filed the present complaint on May 8, 2007, against Riverside, Dunn, and Wiley. MR seeks to recover the past due amount of $103,432.17 plus liquidated expectancy damages and interest in the amount of $1,920,000. All three defendants have moved to dismiss for lack of personal jurisdiction pursuant to Fed. R.Civ.P. 12(b)(2). II. Analysis of Personal Jurisdiction over Riverside A. General Principles of Personal Jurisdiction The exercise of personal jurisdiction over a defendant is only appropriate if it is both authorized by statute and consistent with the due process requirements of the United States Constitution. Good Hope Indus., Inc. v. Ryder Scott, Co., 378 Mass. 1, 5-6, 389 N.E.2d 76 (1979); Nowak v. Tak How Inv., Ltd., 94 F.3d 708, 712 (1st Cir.1996); Intech, Inc. v. Triple “C” Marine Salvage, Inc., 444 Mass. 122, 125, 826 N.E.2d 194 (2005). Furthermore, A district court may exercise authority over a defendant by virtue of either general or specific jurisdiction. Specific jurisdiction exists when there is a demonstrable nexus between a plaintiffs claims and a defendant’s forum-based activities. General jurisdiction exists when the litigation is not directly founded on the defendant’s forum-based contacts, but the defendant has nevertheless engaged in continuous and systematic activity, unrelated to the suit, in the forum state. United States v. Swiss American Bank, Ltd., 274 F.3d 610, 618 (1st Cir.2001) (citations and quotations omitted). The plaintiff bears the burden of showing that the court has personal jurisdiction over the defendant. Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002). A district court faced with a motion to dismiss under Rule 12(b)(2) may choose among several methods for determining whether the plaintiff has met its burden: the “prima facie” standard, the “preponderance-of-the-evidence” standard, or the “likelihood” standard. Id. at 50-51 & n. 5. The “most conventional” and “most commonly used” of these methods is the “pri-ma facie” standard. Id. at 51; Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir.1995); Boit v. Gar-Tec Prods., Inc., 967" }, { "docid": "18050714", "title": "", "text": "months after Plaintiffs filed their complaint. In the answer PFC raised the lack of personal jurisdiction as an affirmative defense. Two weeks later, PFC filed its motion to dismiss. The Court finds that PFC raised the personal jurisdiction in a timely fashion. See Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir.1993) (Defendants’ participation in litigation for two-and-a-half years before raising the personal jurisdiction defense constituted waiver); Marcial Ucin, 723 F.2d at 997 (Raising the defense four years after filing an appearance constituted waiver). Plaintiffs’ claim that PFC waived the personal jurisdiction defense is meritless. 2. The personal jurisdiction issue A plaintiff always has the burden of establishing that the forum court has personal jurisdiction over the defendant. Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir.1997). In ruling on this issue, the court has a number of different standards by which it may review the record to determine whether the plaintiff has met her burden. See Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 674-78 (1st Cir.1992). When a court holds an evidentiary hearing on the issue, one of two standards applies: either plaintiff must demonstrate a likelihood of the existence of all facts necessary to establish personal jurisdiction or plaintiff must show by a preponderance of the evidence the facts which support personal jurisdiction. Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145-47 (1st Cir.1995); Mohajer v. Monique Fashions, 945 F.Supp. 23, 26 (D.P.R.1996). A third method often used at the early stages of litigation is the prima facie standard. Rodriguez, 115 F.3d at 83-84. Under this least taxing of the standards, a plaintiff must make a showing as to each fact required to satisfy both the local forum’s long-arm statute and the Constitution’s due process clause. Id. The district court does not sit as a factfinder; rather, “it ascertains only whether the facts duly proffered, fully credited, support the exercise of personal jurisdiction.” Id. at 84. To make a prima facie showing, the plaintiff may not rest on unsupported allegations in the pleadings; instead, she must adduce evidence of specific facts" }, { "docid": "4484090", "title": "", "text": "with HGI, which itself has sufficient contacts in Massachusetts to be hailed into federal court in this state. The district court found that neither jurisdictional theory had sufficient factual support to carry the day. We' review those conclusions of law de novo, see Harlow v. Children’s Hosp., 432 F.3d 50, 57 (1st Cir.2005), and affirm. The district court analyzed plaintiffs’ jurisdictional claim under the prima facie standard of Boit v. Gar-Tec Products, Inc., 967 F.2d 671 (1st Cir.1992). See id. at 675. Under that standard,, “plaintiffs] ultimately bear[ ] the burden of persuading the court that jurisdiction exists.” Mass. Sch. of Law, 142 F.3d at 34. “[P]laintiffs may not rely on unsupported allegations in their pleadings,” Boit, 967 F.2d at 675, but are “obliged to adduce evidence of specific facts,” Foster-Miller, Inc. v. Babcock & Wilcox Can., 46- F.3d 138, 145 (1st Cir.1995). We, in turn, take those “specific facts affirmatively alleged by the plaintiffs] as true ... and construe them in the light most congenial to the plaintiffs’] jurisdictional claim.” Mass. Sch. of Law, 142 F.3d at 34. We also “add to the mix facts put forward by the defendants, to the extent that they are uncontradicted.” Id. To establish personal jurisdiction, plaintiffs must show that jurisdiction is both statutorily authorized and consistent with the Constitution. See Daynard, 290 F.3d at 52. The Supreme Judicial Court of Massachusetts has interpreted the state’s long-arm statute as coextensive with the outer limits of the Constitution, id. (citing “Automatic” Sprinkler Corp. of Am. v. Seneca Foods Corp., 361 Mass. 441, 280 N.E.2d 423, 424 (1972)); thus, the only inquiry that remains is the constitutional one, see Sawtelle v. Farrell, 70 F.3d 1381, 1388 (1st Cir.1995). Specifically, the question here is whether the Due Process Clause of the Fourteenth Amendment allows Massachusetts to exercise personal jurisdiction over HG Limited. For the answer to this question to be yes, a defendant must have sufficient minimum contacts with the forum state “such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Washington, 326" }, { "docid": "21633890", "title": "", "text": "See Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir. 2007). “Faced with a motion to dismiss for lack of personal jurisdiction, a district court ‘may choose from among several methods for determining whether the plaintiff has met [its] burden.’ ” Id. (alteration in original) (quoting Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50-51 (1st Cir. 2002)). Here, the district court employed the pri-ma facie method, which requires no differential factfinding; rather, this method requires only that a plaintiff proffer evidence which, taken at face value, suffices to show all facts essential to personal jurisdiction. See id.; Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir. 1995). For the purpose of examining the merits of such a jurisdictional proffer, we — like the district court — take the facts from the pleadings and whatever supplemental filings (such as affidavits) are contained in the record, giving credence to the plaintiffs version of genuinely contested facts. See Sawtelle v. Farrell, 70 F.3d 1381, 1385 (1st Cir. 1995). We may, of course, take into account undisputed facts put forth by the defendant. See C.W. Downer, 771 F.3d at 65. The case before us is a diversity case. See 28 U.S.C. § 1332(a). “In determining whether a non-resident defendant is subject to its jurisdiction, a federal court exercising diversity jurisdiction ‘is the functional equivalent of a state court sitting in the forum state.’ ” Sawtelle, 70 F.3d at 1387 (quoting Ticketmaster-N.Y., Inc, v. Alioto, 26 F.3d 201, 204 (1st Cir. 1994)). It follows that Baskin-Robbins must show that the district court’s assertion of personal jurisdiction over Alpenrose would satisfy the requirements of both the Due Process Clause of the federal Constitution and the Massachusetts long-arm statute, Mass. Gen. Laws ch. 223A, § 3. The jurisdictional requirements imposed by the Massachusetts long-arm statute are quite similar to, though not completely congruent with, the jurisdictional requirements imposed by the Due Process Clause. See Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st Cir. 2015). Because the modest difference between these requirements is not material here, we" }, { "docid": "15202478", "title": "", "text": "for lack of jurisdiction, it did not reach any of the other grounds for dismissal argued in Beard and Hesse’s motion to dismiss. Several of Hannon’s claims against other defendants, as well as other plaintiffs’ claims, survived motions to dismiss. Final judgment on the dismissal of the claims against Beard and Hesse was entered pursuant to Hannon’s Rule 54(b) motion, and Hannon timely appealed. II. It is axiomatic that, “[t]o hear a case, a court must have personal jurisdiction over the parties, ‘that is, the power to require the parties to obey its decrees.’ ” Daynard v. Ness, Motley, Loadholt, Richardson, & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002) (quoting United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 35 (1st Cir.1999)). “The plaintiff bears the burden of proving the court’s personal jurisdiction over a defendant.” Daynard, 290 F.3d at 50. Under the prima facie standard, which the district court applied, we “accept the plaintiffs (properly documented) evidentiary proffers as true,” and construe those facts “in the light most congenial to the plaintiffs jurisdictional claim.” Id. at 51 (internal quotation marks and citation omitted). We review the district court’s application of this standard de novo. Id. Hannon has not alleged that Beard or Hesse “has engaged in continuous and systematic activity” in Massachusetts; so, in the absence of general jurisdiction, the court’s power will depend upon the existence of specific jurisdiction. See id. at 51. “Specific jurisdiction exists when there is a demonstrable nexus between a plaintiffs claims and a defendant’s forum-based activities, such as when the litigation itself is founded directly on those activities.” Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir.1998). Furthermore, to establish personal jurisdiction, Hannon must show that “the Massachusetts long-arm statute grants jurisdiction and, if it does, that the exercise of jurisdiction under the statute is consistent with the Constitution.” Day-nard, 290 F.3d at 52. A. Because we have construed the Massachusetts long-arm statute to be coextensive with the limits allowed by the United States Constitution, we often “sidestep the statutory inquiry and proceed" }, { "docid": "23438208", "title": "", "text": "A. The Jurisdictional Issue From the very outset of this litigation, Nihon Kohden has vigorously maintained that, as a California business, it should not have been haled into court in Rhode Island to defend its hiring of a Florida resident to sell its product in Florida. In support of its contention that it lacks sufficient contacts with Rhode Island to be subjected to jurisdiction, Nihon Kohden marshals evidence that it contends demonstrates an absence of any contacts between it and Rhode Island, between Plant and Rhode Island, and between its deal with Plant and Rhode Island. 1. Legal Standards To hear a case, a court must have personal jurisdiction over the parties, “that is, the power to require the parties to obey its decrees.” United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 35 (1st Cir.1999). Early on, Nihon Kohden moved to dismiss the lawsuit under Federal Rule of Civil Procedure 12(b)(2) on the ground that the district court did not have personal jurisdiction. The district court denied the motion. On a motion to dismiss for want of personal jurisdiction, the plaintiff ultimately bears the burden of persuading the court that jurisdiction exists. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Mass. Sch. of Law at Andover, Inc. v. Amer. Bar Ass’n, 142 F.3d 26, 34 (1st Cir.1998). Faced with a motion to dismiss for lack of personal jurisdiction, a district court “ ‘may choose from among several methods for determining whether the plaintiff has met [its] burden.’ ” Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir.2007) (quoting Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50-51 (1st Cir.2002)). Here, the district court used the “prima facie method” or the “prima facie evidentiary standard,” rather than adjudicating the jurisdictional facts. Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145-47 (1st Cir.1995) (describing the prima facie, preponderance, and likelihood standards). The district court considered “only whether the plaintiff has proffered evidence that, if credited, [was] enough to support findings of all facts essential to" }, { "docid": "9387995", "title": "", "text": "is a demonstrable nexus between a plaintiffs claims and a defendant’s forum-based activities. General jurisdiction exists when the litigation is not directly founded on the defendant’s forum-based contacts, but the defendant has nevertheless engaged in continuous and systematic activity, unrelated to the suit, in the forum state. United States v. Swiss American Bank, Ltd., 274 F.3d 610, 618 (1st Cir.2001) (citations and quotations omitted). The plaintiff bears the burden of showing that the court has personal jurisdiction over the defendant. Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002). A district court faced with a motion to dismiss under Rule 12(b)(2) may choose among several methods for determining whether the plaintiff has met its burden: the “prima facie” standard, the “preponderance-of-the-evidence” standard, or the “likelihood” standard. Id. at 50-51 & n. 5. The “most conventional” and “most commonly used” of these methods is the “pri-ma facie” standard. Id. at 51; Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir.1995); Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir.1992). In conducting that analysis, the court is required to take specific facts affirmatively alleged by the plaintiff as true (whether or not disputed) and “construe them in the light most congenial to the plaintiffs jurisdictional claim.” Massachusetts School of Law at Andover, Inc. v. American Bar Association, 142 F.3d 26, 34 (1st Cir.1998). The court then “add[s] to the mix facts put forward by defendants, to the extent they are uncontradicted.” Daynard, 290 F.3d at 51. The prima facie method is appropriate here because the jurisdictional inquiry does not involve materially conflicting versions of the relevant facts. See Foster-Miller, 46 F.3d at 145-146 (describing the preponderance-of-the-evidence standard and likelihood standards). B. Personal Jurisdiction over Riverside This case presents an issue of specific jurisdiction. The Massachusetts long-arm statute, Mass. Gen. Laws ch. 223A, § 3, states in relevant part: A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s: a) transacting" }, { "docid": "16768208", "title": "", "text": "they are inhibiting his ability to deal freely in his Macau business venture. Following jurisdictional discovery, Han-anel filed renewed motions to dismiss for lack of personal jurisdiction and forum non conveniens, The district court re ferred the motions to the Magistrate Judge who recommended that the motion to dismiss for lack of personal jurisdiction be denied as to Count One for declaratory judgment, .but granted as to the other three counts. The Magistrate Judge also recommended that the motion to dismiss for forum non conveniens be granted. Rejecting the parties’ various objections to the Magistrate Judge’s report, the district court adopted and accepted both recommendations. Adelson now appeals the dismissal for forum non conveniens, and Hananel cross-appeals the. denial of his motion to dismiss, for lack of personal jurisdiction, Count One of the complaint. II. Discussion A. Personal Jurisdiction We first review the district court’s denial of Hananel’s motion to dismiss Count One for lack of personal jurisdiction. Faced with a motion to dismiss for lack of personal jurisdiction, a district court “may choose from among several methods for determining whether the plaintiff has met [its] burden.” Daynard v. Ness, Motley, Loadholt, Richardson & Pooh, P.A., 290 F.3d 42, 50-51 (1st Cir.2002). In this case, the district court employed the most common method, the “prima facie method” or the “prima facie evidentiary standard,” rather than adjudicating the jurisdictional facts. The district court found that the amount of detailed and specific evidence provided by the plaintiff weighed in favor of applying the prima facie standard. Under this standard, the court need only “consider ... whether the plaintiff has proffered evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction.” Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir.1995)(quoting Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir.1992)). We review both the district court’s decision to use the prima facie standard and its conclusion under that standard de novo. Foster-Miller, 446 F.3d at 147; see also United States v. Swiss American Bank, Ltd., 274 F.3d 610, 619 (1st Cir.2001). Here," }, { "docid": "23438209", "title": "", "text": "dismiss for want of personal jurisdiction, the plaintiff ultimately bears the burden of persuading the court that jurisdiction exists. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Mass. Sch. of Law at Andover, Inc. v. Amer. Bar Ass’n, 142 F.3d 26, 34 (1st Cir.1998). Faced with a motion to dismiss for lack of personal jurisdiction, a district court “ ‘may choose from among several methods for determining whether the plaintiff has met [its] burden.’ ” Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir.2007) (quoting Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50-51 (1st Cir.2002)). Here, the district court used the “prima facie method” or the “prima facie evidentiary standard,” rather than adjudicating the jurisdictional facts. Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145-47 (1st Cir.1995) (describing the prima facie, preponderance, and likelihood standards). The district court considered “only whether the plaintiff has proffered evidence that, if credited, [was] enough to support findings of all facts essential to personal jurisdiction.” Daynard, 290 F.3d at 51. Where, as here, the district court employed the prima facie standard, we review “both the district court’s decision to use the prima facie standard and its conclusion under that standard de novo.” Adelson, 510 F.3d at 48; Daynard, 290 F.3d at 51; Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 712 (1st Cir.1996). In this case, the parties “do not object to the court’s choice of method; the defendant contends only that it was misapplied.” Adelson, 510 F.3d at 48. Applying the prima facie standard, we “ ‘must accept the plaintiffs (properly documented) evidentiary proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing.’ ” Id. (quoting Foster-Miller, 46 F.3d at 145). We “accept those facts as true, irrespective of whether the defendant disputes them, and in so doing, construe them in the light most congenial to the plaintiffs jurisdictional claim.” Id. (internal quotation omitted). The facts put forward by the defendant “become part of the mix only to the extent" }, { "docid": "18050715", "title": "", "text": "holds an evidentiary hearing on the issue, one of two standards applies: either plaintiff must demonstrate a likelihood of the existence of all facts necessary to establish personal jurisdiction or plaintiff must show by a preponderance of the evidence the facts which support personal jurisdiction. Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145-47 (1st Cir.1995); Mohajer v. Monique Fashions, 945 F.Supp. 23, 26 (D.P.R.1996). A third method often used at the early stages of litigation is the prima facie standard. Rodriguez, 115 F.3d at 83-84. Under this least taxing of the standards, a plaintiff must make a showing as to each fact required to satisfy both the local forum’s long-arm statute and the Constitution’s due process clause. Id. The district court does not sit as a factfinder; rather, “it ascertains only whether the facts duly proffered, fully credited, support the exercise of personal jurisdiction.” Id. at 84. To make a prima facie showing, the plaintiff may not rest on unsupported allegations in the pleadings; instead, she must adduce evidence of specific facts which establish personal jurisdiction. Foster-Miller, 46 F.3d at 145; Boit, 967 F.2d at 675. In the present case, no party has requested an evidentiary hearing and the litigation is in its early stages. Moreover, the First Circuit has ruled that unless the district court otherwise informs the parties, it is to be understood that the prima facie standard will be used. See Rodriguez, 115 F.3d at 84. Accordingly, the Court will employ the prima facie standard in ruling on the motion to dismiss. Personal jurisdiction relates to a court’s power over the defendant. There are two types of personal jurisdiction: general and specific. Pritzker v. Yari, 42 F.3d 53, 59 (1st Cir.1994). General jurisdiction exists when the lawsuit is not directly based on the defendant’s contacts with the forum, but when the defendant has engaged in activity in the forum which is unrelated to the suit and which is systematic and continuous. Foster-Miller, 46 F.3d at 144 (quoting United Elec., Radio and Mach. Workers of America v. 163 Pleasant Street Corp., 960 F.2d 1080, 1088" }, { "docid": "10117644", "title": "", "text": "Lyonnais Sec. (USA), Inc. v. Acantara, 183 F.3d at 154 (holding that the court “must determine whether the defendant in fact subjected itself to the court’s jurisdiction”). Where a defendant raises a timely challenge contesting personal jurisdiction, the plaintiff bears the burden of establishing that there is personal jurisdiction over the defendant and that the exercise of personal jurisdiction would not violate due-process requirements. See Overton v. United States, 925 F.2d 1282, 1283 (10th Cir.1991); Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1417 (10th Cir.1988); Jemez Agency, Inc. v. CIGNA Corp., 866 F.Supp. 1340, 1342 (D.N.M.1994)(Burciaga, J). At this stage of the proceedings, it is not for the court to resolve disputed’ facts. See Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 45 (1st Cir.2002). Rather, the court “ ‘must accept the plaintiffs (properly documented) evidentiary proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing.’ ” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d at 45 (quoting Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir.1995)). LAW REGARDING PERSONAL JURISDICTION The plaintiff has the burden of proving personal jurisdiction. The court’s jurisdiction may rest on general or specific personal jurisdiction. Due process, however, limits any state statutory basis for personal .jurisdiction. 1. Burden of Proof. “[W]hen the court’s jurisdiction is contested, the plaintiff has the burden of proving jurisdiction exists.” Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995). When jurisdiction is “decided on the basis of affidavits and other written materials, the plaintiff peed only make a prima facie showing” of facts that would support the assertion of jurisdiction. [Wenz v. Memery Crystal, 55 F.3d at 1505]. “The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant’s affidavit.” Behagen v. Amateur Basketball Ass’n, 744 F.2d at 733. When, however, a defendant presents credible evidence through affidavits or other materials suggesting the lack of personal jurisdiction, the plaintiff must come forward with sufficient evidence to create a genuine dispute of" }, { "docid": "6326909", "title": "", "text": "OPINION AND ORDER CASELLAS, District Judge. Pending before the Court are Defendants’ Motions to Dismiss for lack of in personam jurisdiction (Dockets ## 17 & 22). Plaintiff has opposed Defendants’ motions (Docket # 23) and Defendants have replied (Dockets ## 28 & 29). Upon careful review of the parties’ filings and the applicable law, we find that Co-defendants Baker’s and McClanahan’s motion to dismiss must be GRANTED, that Co-defendants Eldorado Homes, Inc.’s (herein, “Eldorado”), Chitram (Blue) Sewnarine’s and Jana Sewnarine’s motion to dismiss must be GRANTED in part and DENIED in part. Standard of Review “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Intemat’l Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Therefore, in order for a court to be able to make a binding decision, the court must have personal jurisdiction over each party to the case. Rodriguez v. Dixie Southern Industrial, Inc., 113 F.Supp.2d 242, 249 (D.P.R.2000) (citing United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 35 (1st Cir.1999)). The plaintiff has the burden of proof in establishing that the court has personal jurisdiction over the defendant. Id. (citing Mass. Sch. of Law at Andover v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir.1998); Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir.1997)). The court then “draws the facts from the pleadings and the parties’ supplementary filings, including affidavits, taking facts affirmatively alleged by plaintiff as true and construing disputed facts in the light most hospitable to plaintiff.” Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir.1994). However, the court does not credit conclu-sory allegations or draw farfetched inferences. Id. At the early stages of litigation and having held no previous evidentiary hearing, the court typically applies a prima facie standard. Rodriguez, 115 F.3d at 83-84. Moreover, the First Circuit has ruled that unless the" }, { "docid": "14444123", "title": "", "text": "for lack of personal jurisdiction. After allowing extensive briefing and hold ing a motion hearing, .the district court dismissed the case for lack of personal jurisdiction by a docket notation. While this case was on appeal, the defendant, Prairie Eye Center, filed a breach of contract action against Phillips in U.S. District Court for the Central District of Illinois seeking damages and declaratory relief. Phillips, who has since moved to the state of Washington, moved for a stay of that proceeding because of the pending appeal in this case. The federal district court in Illinois denied the stay, and Phillips has asserted the claims he makes here as counterclaims in that case. II. A. Standard of Review and Burden of Proof We review de novo a district court’s decision to dismiss for lack of personal jurisdiction. Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir.2007). The district court “may choose from among several methods for determining whether the plaintiff has met [its] burden.” Id. (quoting Daynard, 290 F.3d at 50-51) (internal quotation marks omitted). Because the district court did not hold an evidentiary hearing but credited the plaintiffs evidentiary submissions, we construe the court’s ruling as employing the prima facie method. This is “the least taxing of these standards from a plaintiffs standpoint.” Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83-84 (1st Cir.1997). Under the prima facie standard, the inquiry is whether the plaintiff has proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction. Daynard, 290 F.3d at 51. In order to make a prima facie showing of jurisdiction, “the plaintiff ordinarily cannot rest upon the pleadings but is obliged to adduce evidence of specific facts.” Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir.1995). The court “must accept the plaintiffs (properly documented) evidentiary proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing,” Daynard, 290 F.3d at 51 (quoting Foster-Miller, 46 F.3d at 145) (internal quotation marks omitted), and “construe them in the light most congenial to the plaintiffs jurisdictional" }, { "docid": "20678194", "title": "", "text": "as to the exercise of specific jurisdiction. II. STANDARD OF REVIEW We review de novo the district court’s decision to dismiss for lack of personal jurisdiction. Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir.2008). A Corp. bears the burden to establish that specific jurisdiction exists over All American. Id. Below, the district court employed the prima facie method to determine whether A Corp. had met its burden. Under this standard, “the inquiry is whether [A Corp.] has proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction.” Id. at 26. It is not enough for A Corp. to “rely on unsupported allegations in [its] pleadings.” Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118, 134 (1st Cir.2006) (quoting Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir.1992)). Rather, A Corp. must put forward “evidence of specific facts” to demonstrate that jurisdiction exists. Id. (quoting Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir.1995)). Reviewing a decision made under the prima facie standard, we must accept A Corp.’s properly documented evidentiary proffers as true and construe them in the light most favorable to A Corp.’s jurisdictional claim. Phillips, 530 F.3d at 26 (citing Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir.2002)). But we will also consider facts offered by All American, to the extent that they are not disputed. Daynard, 290 F.3d at 51. III. JURISDICTIONAL ANALYSIS To establish personal jurisdiction over All American, A Corp. must meet the requirements of both the Massachusetts long-arm statute and the due process clause of the Fourteenth Amendment. Daynard, 290 F.3d at 52. A Corp. asserts specific jurisdiction under Mass. Gen. Laws ch. 223A § 3(d), which extends personal jurisdiction to persons “causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth.” Id. This Court previous" }, { "docid": "16768209", "title": "", "text": "among several methods for determining whether the plaintiff has met [its] burden.” Daynard v. Ness, Motley, Loadholt, Richardson & Pooh, P.A., 290 F.3d 42, 50-51 (1st Cir.2002). In this case, the district court employed the most common method, the “prima facie method” or the “prima facie evidentiary standard,” rather than adjudicating the jurisdictional facts. The district court found that the amount of detailed and specific evidence provided by the plaintiff weighed in favor of applying the prima facie standard. Under this standard, the court need only “consider ... whether the plaintiff has proffered evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction.” Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir.1995)(quoting Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir.1992)). We review both the district court’s decision to use the prima facie standard and its conclusion under that standard de novo. Foster-Miller, 446 F.3d at 147; see also United States v. Swiss American Bank, Ltd., 274 F.3d 610, 619 (1st Cir.2001). Here, the parties do not object to the court’s choice of method; the defendant contends only that it was misapplied. Applying the prima facie standard, Adelson bears the burden of establishing that the district court has personal jurisdiction over Hananel. We “must accept the plaintiffs (properly documented) evi-dentiary proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing.” Foster-Miller, 46 F.3d at 145. In fact, we accept those facts as true, irrespective of whether the defendant disputes them, and in so doing, “construe them in the light most congenial to the plaintiffs jurisdictional claim.” Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir.1998). Those facts put forward by the defendant become part of the mix only to the extent that they are uncontradicted. Id. at 34. It is undisputed that Adelson is proceeding under a theory of specific (rather than general) jurisdiction and, therefore, must demonstrate that the Massachusetts long-arm statute grants jurisdiction over Hananel and that the exercise of that jurisdiction" }, { "docid": "14444124", "title": "", "text": "the district court did not hold an evidentiary hearing but credited the plaintiffs evidentiary submissions, we construe the court’s ruling as employing the prima facie method. This is “the least taxing of these standards from a plaintiffs standpoint.” Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83-84 (1st Cir.1997). Under the prima facie standard, the inquiry is whether the plaintiff has proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction. Daynard, 290 F.3d at 51. In order to make a prima facie showing of jurisdiction, “the plaintiff ordinarily cannot rest upon the pleadings but is obliged to adduce evidence of specific facts.” Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir.1995). The court “must accept the plaintiffs (properly documented) evidentiary proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing,” Daynard, 290 F.3d at 51 (quoting Foster-Miller, 46 F.3d at 145) (internal quotation marks omitted), and “construe them in the light most congenial to the plaintiffs jurisdictional claim,” id. (quoting Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir.1998)) (internal quotation mark omitted). B. Jurisdictional Analysis There is no claim here of general jurisdiction. See Harlow v. Children’s Hosp., 432 F.3d 50, 57 (1st Cir.2005) (describing the difference between general jurisdiction, which requires that the defendant have continuous and systematic contacts with the state, and specific jurisdiction, where the claim must be related to the defendant’s contacts). Phillips bases his claim of specific personal jurisdiction over Prairie Eye on the Massachusetts long-arm statute. We proceed directly to the constitutional analysis, “because the Supreme Judicial Court of Massachusetts has interpreted the state’s long-arm statute ‘as an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States.’ ” Daynard, 290 F.3d at 52 (quoting “Automatic” Sprinkler Corp. of Am. v. Seneca Foods Corp., 361 Mass. 441, 280 N.E.2d 423, 424 (1972)). The Due Process Clause requires that “in order to subject a defendant to a judgment in personam, if" }, { "docid": "6326910", "title": "", "text": "must have personal jurisdiction over each party to the case. Rodriguez v. Dixie Southern Industrial, Inc., 113 F.Supp.2d 242, 249 (D.P.R.2000) (citing United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 35 (1st Cir.1999)). The plaintiff has the burden of proof in establishing that the court has personal jurisdiction over the defendant. Id. (citing Mass. Sch. of Law at Andover v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir.1998); Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir.1997)). The court then “draws the facts from the pleadings and the parties’ supplementary filings, including affidavits, taking facts affirmatively alleged by plaintiff as true and construing disputed facts in the light most hospitable to plaintiff.” Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir.1994). However, the court does not credit conclu-sory allegations or draw farfetched inferences. Id. At the early stages of litigation and having held no previous evidentiary hearing, the court typically applies a prima facie standard. Rodriguez, 115 F.3d at 83-84. Moreover, the First Circuit has ruled that unless the district court otherwise informs the parties, it is to be understood that the prima facie standard will be used. Id. Accordingly, this Court will employ the prima fade standard in its ruling. “To make a prima facie showing, the plaintiff may not rest on unsupported allegations in the pleadings; instead, it must adduce evidence of specific facts which establish personal jurisdiction.” Rodriguez, 113 F.Supp.2d at 249 (citing Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir.1995); Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir.1992)). The district court does not sit as a fact finder; rather, “it ascertains only whether the facts duly proffered, fully credited, support the exercise of personal jurisdiction.” Id. (quoting Rodriguez, 115 F.3d at 84). There are two types of personal jurisdiction: general and specific. Mass. Sch. of Law, 142 F.3d at 34; Pritzker v. Yari, 42 F.3d 53, 59 (1st Cir.1994). General jurisdiction exists when the lawsuit is not directly based on the defendant’s contacts with the forum, but when the defendant has engaged" }, { "docid": "6326911", "title": "", "text": "district court otherwise informs the parties, it is to be understood that the prima facie standard will be used. Id. Accordingly, this Court will employ the prima fade standard in its ruling. “To make a prima facie showing, the plaintiff may not rest on unsupported allegations in the pleadings; instead, it must adduce evidence of specific facts which establish personal jurisdiction.” Rodriguez, 113 F.Supp.2d at 249 (citing Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir.1995); Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir.1992)). The district court does not sit as a fact finder; rather, “it ascertains only whether the facts duly proffered, fully credited, support the exercise of personal jurisdiction.” Id. (quoting Rodriguez, 115 F.3d at 84). There are two types of personal jurisdiction: general and specific. Mass. Sch. of Law, 142 F.3d at 34; Pritzker v. Yari, 42 F.3d 53, 59 (1st Cir.1994). General jurisdiction exists when the lawsuit is not directly based on the defendant’s contacts with the forum, but when the defendant has engaged in systematic and continuous activity in said forum. Foster-Miller, 46 F.3d at 144 (citing United Elec. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1088 (1st Cir.1992)). Since Plaintiff in this case has argued only the existence of this Court’s specific jurisdiction over Defendants, the Court will proceed to discuss and apply only the specific jurisdiction analysis. Specific jurisdiction exists when “the cause of action arises directly out of, or relates to, the defendant’s forum-based contacts.” United Elec. Workers, 960 F.2d at 1088-89. In diversity jurisdiction cases, it requires a plaintiff to establish two conditions: first, that the forum has a long-arm statute which purports to grant jurisdiction over the defendant; and second, that the court’s exercise of personal juris diction over the defendant pursuant to that statute would comport with the Constitution’s strictures. Foster-Miller, 46 F.3d at 144; Pritzker, 42 F.3d at 60. With regard to the first condition, the First Circuit Court has consistently held and reaffirmed that the Puerto Rico’s long-arm statute “extends personal jurisdiction as far as the Federal Constitution" }, { "docid": "3729937", "title": "", "text": "evidence of Lee’s more general contacts with Massachusetts. But as Bernard has not attempted to assert the existence of general jurisdiction over Lee, and the additional contacts he cites are not related to the Note on which he bases this cause of action, we do not consider these sporadic contacts in our analysis. II. Standard of Review When a court’s personal jurisdiction over a defendant is contested, the plaintiff has the ultimate burden of showing by a preponderance of the evidence that jurisdiction exists. Ealing Corp. v. Harrods Ltd., 790 F.2d 978, 979 & n. 1 (1st Cir.1986). A district court “may choose from among several methods to determine whether the plaintiff has met [his] burden.” Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir.2007) (quoting Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50-51 (1st Cir.2002)) (internal quotations omitted). Here, because the district court did not hold an evidentiary hearing before ruling on the jurisdictional question, we would normally assume that the court had employed the prima facie method. See Phillips v. Prairie Eye Center, 530 F.3d 22, 26 & n. 2 (1st Cir.2008) (citing Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 146 (1st Cir.1995)). But the case then proceeded to summary judgment, at which time Lee again challenged the court’s jurisdiction. In granting summary judgment in favor of Bernard, the district court implicitly found that Bernard had demonstrated jurisdiction by a preponderance of the evidence. In finding that two cases which Lee raised did not alter its previous decision on the jurisdictional question, the court added: In this case, Defendant [Lee] negotiated the Note over the phone with Plaintiff, whom Defendant knew was located in, and a resident of, Massachusetts. Additionally, Defendant executed the Note knowing that the $110,000 he received was from a Massachusetts resident. Finally, the funds were disbursed through a Massachusetts bank. Adams v. Adams, No.08-10828-JLT, slip op. at 10-11 (D.Mass. Mar. 4, 2009). Thus, despite the lack of an evidentiary hearing, it appears that the court evaluated the parties’ submissions and determined that Bernard had shown by" }, { "docid": "14989973", "title": "", "text": "and that transfer is not warranted. Accordingly, the defendants’ motion is DENIED. II. STATEMENT OF FACTS Standard of Review of Record “On a motion to dismiss for want of personal jurisdiction, the plaintiff ultimately bears the burden of persuading the court that jurisdiction exists.” Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009), and cases cited. “When a district court rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, as in this case, the ‘prima facie’ standard governs its determination.” United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001). Under this standard, the plaintiff must “demonstrate the existence of every fact required to satisfy both the forum’s long-arm statute and the Due Process Clause of the Constitution.” Id. (quotations and citation omitted). Thus, to meet her burden in this case, Ms. Crowe must “proffer evidence which, taken at face value, suffices to show all facts essential to personal jurisdiction.” Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 826 F.3d 28, 34 (1st Cir. 2016). The court will “take the facts from the pleadings and whatever supplemental filings (such as affidavits) are contained in the record, giving credence to the plaintiffs version of genuinely contested facts.” Id. It will “then add to the mix facts put forward by the defendants, to the extent .that they are uncon-tradicted.” N. Laminate Sales, Inc. v. Davis, 403 F.3d 14, 24 (1st Cir. 2005) (quoting Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002)) (additional quotations and citation omitted). Applying this standard to the instant case, the relevant facts are as follows. The Parties Sara Crowe, a literary agent by profession, is currently domiciled in Milton, Massachusetts. (FAC ¶ 1). Harvey Klinger, Inc. is a literary agency incorporated under the laws of New York with its principle place of business in New York, New York. (Id. ¶ 2). Harvey Klinger is the sole owner of the Agency (Klinger Decl. ¶ 1) and is the principal and CEO. (FAC ¶ 9). He is." } ]

[ { "docid": "22251321", "title": "", "text": "a bulge had developed in the upper eastern portion of the front wall of the building, and that there was a crack which they believed to be approximately three inches wide at its widest point between the front wall and the eastern wall of the building. The crack was said to extend from the roof above the fifth floor to a point somewhat above the level of the second floor. On January 13, 1981, the City instituted a proceeding pursuant to Section C26-80.0 or C26-84.0 of the Administrative Code to obtain a declaration that the building was unsafe and was to be demolished. It is undisputed that appellant did not receive formal notice of this proceeding, despite the existence of a notice requirement in Section C26-80.5 of the Administrative Code. In February, 1981— again without formal notice to appellant— the City entered into a contract with appellee BC Enterprises, Inc. under which BC was to demolish and remove the building. On or about March 4, 1981, appellant learned from a plumber, who at the time was doing work for her and who lived in the vicinity of the building, about the City’s plans to demolish the building. The following day, she visited the building, which was not occupied by tenants at the time, and found that the apartment doors had been removed and that men were removing the fireplace mantelpieces from the building. Immediately thereafter, appellant inquired of various City officials, including appellees Sakona, Cocolicchio, Dennis, Weiner, Juliano, and Minkin, as to their intentions and stated her objections to the proposed demolition. She was told by these City officials that the building would be demolished despite her objections. Appellant thereafter engaged one Robert E. Lawless, a Registered Architect of the State of New York, and one Luke Licalzi, a Professional Engineer licensed by the States of New York, New Jersey and Connecticut, to inspect the building. The inspections were conducted on March 5, 1981 and March 8, 1981. Both the architect and the engineer reported to appellant that the crack was only 2 inches at its widest point and that" } ]

[ { "docid": "536861", "title": "", "text": "77], sworn to on April 12, 1983, attached as Exhibit 17 to Affidavit of George Sakona, sworn to on June 12, 1988. On April 14, 1983, the order to vacate was issued by the DOB. In a separate report, the DOB maintained that a vacate order was not required for 400-404. Plaintiffs instituted the present action in this Court in December 1983, seeking monetary and injunctive relief pursuant to 42 U.S.C. § 1983, challenging the constitutionality of the foregoing administrative actions by the DOB. Thereafter, in January 1984, plaintiffs applied for a demolition permit which would authorize them to demolish 406. This application was denied by DOB on the grounds that 406 contained housing units and plaintiffs had failed to comply with applicable rent regulations. The denial of the demolition permit was subsequently upheld by the New York Supreme Court in Weissman v. City of New York, Index No. 16976/84 (Sup.Ct., N.Y.Co.1985) (\" Weissman III \"). Further inspections of 406 were undertaken on January 25 and February 22, 1984. DOB inspectors reported that a demolition order was not justified. Finally, apparently despairing of ever obtaining the DOB approvals necessary to develop their property as they wished, plaintiffs sold the subject premises for $4.1 million on January 6, 1986. The complaint currently before the Court, plaintiffs’ third amended complaint, essentially presents the following constitutional claims. With regard to the revocation of the alteration permit, plaintiffs allege three constitutional violations: i) the revocation violated plaintiffs’ substantive due process rights because it was based on non-compliance with § 96-109, a regulation which plaintiffs contend is unconstitutional; ii) the revocation based upon non-compliance with an unconstitutional statute subjected plaintiffs to an unconstitutional “taking” of property; and, iii) the revocation of their permit without prior notice or an opportunity to be heard violated their procedural due process rights. With regard to the City’s refusal to order that the buildings be demolished or vacated, plaintiffs argue that: i) the decisions by the various DOB officials and employees were arbitrary and capricious, violating plaintiffs’ rights to substantive due process; ii) defendants’ refusal to vacate and demolish plaintiffs’" }, { "docid": "536890", "title": "", "text": "peril to property or life, their procedural due process rights would not have been violated. As noted above, the revocation of plaintiffs’ permit was not a sufficiently final determination to render plaintiffs’ procedural due process claim ripe for adjudication. Even if that claim were ripe, however, the former BSA procedures for appealing revocations of alteration permits did not improperly infringe upon plaintiffs’ procedural due process rights. The Court consequently grants defendants’ motion for summary judgment on that issue. II. DOB’S REFUSAL TO ISSUE VACATE OR DEMOLITION ORDERS As noted earlier, plaintiffs have also raised claims concerning the DOB’s various decisions not to vacate or demolish their buildings. Plaintiffs allege that these determinations: (i) were arbitrary and capricious, violating plaintiffs’ rights to substantive due process; (ii) effected a “taking” of plaintiffs’ property without just compensation, and; (iii) denied plaintiffs’ equal protection of the laws, since the DOB ordered other buildings in similar or better structural condition to be vacated or demolished. Defendants have moved for summary judgment as to these claims, while plaintiffs argue that material questions of fact remain to be determined. The Court agrees that the present factual record does not justify a judgment at this stage of the proceedings. Plaintiffs’ constitutional claims regarding the DOB’s failure to issue vacate and demolition orders were added relatively recently to this action, appearing for the first time in plaintiffs’ third amended complaint. They consequently raise new issues which were not necessarily addressed in plaintiffs’ prior discovery. For example, in an order dated October 31, 1986, Magistrate Naomi Reice Buchwald, to whom this case has been referred for pretrial matters, denied plaintiffs’ request that defendant Irving E. Minkin answer questions about the demolition issue. The reason for Magistrate Buchwald’s ruling was that “plaintiffs have not persuaded us that they seek to inquire about an issue other than the one which may not be relitigated in federal court because of the doctrine of res judica-ta.” Memorandum and Order of Magistrate Buchwald, dated October 31, 1986. This ruling, of course, preceded this Court’s order granting plaintiffs leave to amend their complaint to include claims" }, { "docid": "9901501", "title": "", "text": "and remove” the Thunderbolt. In order to carry out the plan, the May- or is alleged to have “conveyed ... his desire that the Thunderbolt ... be declared unsafe and removed in such a manner as to prevent the owner ... from exercising its legal remedies to forestall such removal.” This is said to have been the impetus for the City’s demolition of the roller coaster in November 2000 without any prior notice to plaintiffs. C. The Legal Context Before turning to the evidence, it is helpful to set out the legal context with respect to demolition of unsafe buildings in New York City. In general, “[a] municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger.” In other circumstances, however, such summary action is inappropriate. Article 8 of the New York City Administrative Code sets out procedures for removing or repairing hazardous structures (the “Unsafe Building Procedure” or “UBP”). In brief summary, the Unsafe Building Procedure contemplates the following steps: 1. Upon receipt of a report from a DOB employee that a structure is unsafe or dangerous, the borough superintendent shall cause the report to be docketed in the department’s records. Notice shall be served on the owner with a description of the dangerous condition and an order that the structure be made safe or removed. 2. Should the superintendent determine that there is “actual and imminent danger” that a structure may fall, he or she “shall ... cause the necessary work to be done to render such structure ... temporarily safe until the proper proceedings provided for unsafe structures by this subchap-ter are instituted.” 3. If the owner indicates that it will comply with the superintendent’s order, it must begin work within twenty- four hours. If the owner fails to comply with the order, the premises are surveyed and the report placed before the state supreme court for a determination whether the structure is unsafe or dangerous and “whether the unsafe or dangerous structure or" }, { "docid": "536854", "title": "", "text": "OPINION AND ORDER LEISURE, District Judge: The present action is the latest sally in a protracted legal battle between plaintiffs and various officials of the City of New York as well as the City itself, arising from the defendants’'regulatory actions regarding plaintiffs’ former property. Although the convoluted history of this lengthy dispute does not easily lend itself to recapitulation, the essential facts are as follows. From December 1980 until January 6, 1986, plaintiffs were the owners of the land and buildings located at 400-406 West 57th Street, New York, New York. The buildings on this property contained housing units, and were not separated by open space or zoning lot lines. On August 22, 1980, plaintiffs submitted an application to the New York City Department of Buildings (“DOB”) for an alteration permit to perform alterations at 400-404 West 57th Street (“400-404”). On November 4, 1981, plaintiffs submitted an amendment to this application seeking permission to perform alterations at 406 West 57th Street (“406”) and to combine 406 with 400-404, creating a single building. The DOB approved the application and issued the alteration permit on December 23, 1981. Plaintiffs then engaged a contractor, who gutted the interior of all unoccupied units in 406 in preparation to performing the authorized alterations. After the con- elusion of this work, plaintiffs were informed by their architect and their engineer that the building suffered from numerous serious structural defects. Acting upon this information, plaintiffs notified defendant Irwin Fruchtman, then Commissioner of the DOB, that the construction personnel hired by plaintiffs believed a life-threatening situation to exist at 406. Plaintiffs expressed the opinion that 406 was unsafe and should be vacated immediately because it was in imminent danger of collapse. They also requested that the DOB conduct its own inspection and order that the building be vacated so that it might be demolished. In response to plaintiffs’ request, employees of the DOB conducted an inspection of 406 on April 22, 1982. Substantial structural violations of the Building Code of the City of New York were discovered, and three Notices of Violation were issued to plaintiffs. These Notices" }, { "docid": "9901503", "title": "", "text": "premises shall be vacated and repaired and secured, or repaired and secured, or taken down and removed » 4. If the court determines that the budding is unsafe or dangerous, it shall issue a “precept” reciting the verdict and commanding the borough superintendent to repair or take down the structure. While the UBP does not specifically authorize the City to demolish a building without obtaining a precept from the supreme court, even in the event of an imminent threat to life or safety, the City’s position is that it may do so. DOB Operations Policy and Procedure Notice # 16/93 (the “OPPN”) creates a two-tiered procedure for demolition of dangerous structures: • Where a building has suffered “life threatening structural damage” or is “in imminent danger of collapse,” the DOB may issue a so-called Immediate Emergency Declaration pursuant to which it expects work to “begin by the day after the declaration.” • Where a building has “serious structural damage” or is in “a deteriorating condition when a collapse or failure is expected in the very near future,” the DOB may issue an Emergency Declaration pursuant to which it expects work to begin within thirty to sixty days. In such cases, however, an unsafe building violation is written. When the DOB proceeds under the OPPN, it does not commence a UBP proceeding or seek a precept. It does, however, send a notice to the owner. D. Legal Theories The complaint asserts nine claims for relief: • The first asserts that the demolition without following the Unsafe Building Procedure deprived Wantanabe of its right to procedural due process in violation of the Fourteenth Amendment. • The second maintains that the demolition in the manner alleged in the complaint was “so arbitrary, conscience- shocking, and oppressive” as to deprive Wantanabe of its right to substantive due process under the Fourteenth Amendment. • The third contends that the defendants, by failing to resort to the Unsafe Building Procedure, intentionally treated Wantanabe “differently from all others similarly situated” without any rational basis. It further alleges that former Mayor Giuliani was motivated by animus against Bullard" }, { "docid": "536892", "title": "", "text": "arising from the DOB’s failure to issue vacate and demolition orders, as opposed to DOB’s denial of plaintiffs’ requests for demolition permits. Because the nature of the claims has now changed, discovery that was previously denied may now be proper. “Summary judgment should not be granted while the parties opposing judgment seek discovery of potentially favorable information.” Olin Corp. v. Insurance Co. of North America, 603 F.Supp. 445, 449 (S.D.N.Y.1985), citing Schering Corp. v. Home Insurance Co., 712 F.2d 4, 10 (2d Cir.1983). And as the Second Circuit has noted, “a denial of access to relevant information weighs in favor of the party opposing a motion for summary judgment.” Burlington Coat Factory Warehouse v. Esprit de Corp., 769 F.2d 919, 925 (2d Cir.1985). Since plaintiffs seek, and would arguably be entitled to, additional discovery as to their claims concerning the DOB’s refusal to issue vacate and demolition orders, the Court dénies defendants’ present motion for summary judgment with regard to these claims. CONCLUSION Defendants’ motion for summary judgment as to plaintiffs’ substantive due process, procedural due process, and “taking” claims arising from the DOB’s revocation of their alteration permit is hereby granted. Defendants’ motion for summary judgment as to plaintiffs’ substantive due process, “taking,” and equal protection claims arising from the DOB’s failure to issue vacate and demolition orders for the subject property is denied. SO ORDERED. . There is some dispute as to whether the structures, separated from each other by party walls, constituted one, two or three buildings. For convenience, the Court will refer to 400 and 404, which were issued a single certificate of occupancy, as one building, and to 406, which received a separate certificate of occupancy, as a separate building. In any event, this issue is not material to the constitutional claims presented in these motions. . At the time of plaintiffs’ application, § 96-109 required that, prior to the issuance of a permit for an alteration other than an incidental alteration of any residential building in the Preservation Area of the Special Clinton District (\"Clinton District” or \"District”), the HUD \"certify to the Department" }, { "docid": "9901502", "title": "", "text": "summary, the Unsafe Building Procedure contemplates the following steps: 1. Upon receipt of a report from a DOB employee that a structure is unsafe or dangerous, the borough superintendent shall cause the report to be docketed in the department’s records. Notice shall be served on the owner with a description of the dangerous condition and an order that the structure be made safe or removed. 2. Should the superintendent determine that there is “actual and imminent danger” that a structure may fall, he or she “shall ... cause the necessary work to be done to render such structure ... temporarily safe until the proper proceedings provided for unsafe structures by this subchap-ter are instituted.” 3. If the owner indicates that it will comply with the superintendent’s order, it must begin work within twenty- four hours. If the owner fails to comply with the order, the premises are surveyed and the report placed before the state supreme court for a determination whether the structure is unsafe or dangerous and “whether the unsafe or dangerous structure or premises shall be vacated and repaired and secured, or repaired and secured, or taken down and removed » 4. If the court determines that the budding is unsafe or dangerous, it shall issue a “precept” reciting the verdict and commanding the borough superintendent to repair or take down the structure. While the UBP does not specifically authorize the City to demolish a building without obtaining a precept from the supreme court, even in the event of an imminent threat to life or safety, the City’s position is that it may do so. DOB Operations Policy and Procedure Notice # 16/93 (the “OPPN”) creates a two-tiered procedure for demolition of dangerous structures: • Where a building has suffered “life threatening structural damage” or is “in imminent danger of collapse,” the DOB may issue a so-called Immediate Emergency Declaration pursuant to which it expects work to “begin by the day after the declaration.” • Where a building has “serious structural damage” or is in “a deteriorating condition when a collapse or failure is expected in the very" }, { "docid": "536901", "title": "", "text": "except in certain enumerated situations. Although the general practice before the adoption of this procedure had been to provide such notice, there was no formal policy to this effect, and, as evidenced by the facts of this case, pre-deprivation notice was not provided in all instances. The pre-deprivation notice policy was subsequently codified by Local Law No. 11 of 1988, amending § 27-197 of the Administrative Code of the City of New York. . To the extent the Tafnet decision rested upon a resolution of constitutional issues, it is, of course, not binding upon this Court. Industrial Consultants, Inc. v. H.S. Equities, Inc., 646 F.2d 746, 749 (2d Cir.1981), cert. denied, 454 U.S. 838, 102 S.Ct. 145, 70 L.Ed.2d 120 (1981); Jones v. Henderson, 580 F.Supp. 273, 278 (E.D.N.Y.1984), aff’d in part, vacated in part, 809 F.2d 946 (2d Cir.1987). Nor is the Tafnet court’s interpretation of City regulations strictly binding upon a federal court. See, e.g., O’Connor v. Lee-Hy Paving Corp., 579 F.2d 194, 204-205 n. 15 (2d Cir.1978), cert. denied, 439 U.S. 1034, 99 S.Ct. 638, 58 L.Ed.2d 696 (1978). . The Court, of course, expresses no opinion on those determinations at this point. . Defendants argue that there are no contested material facts rendering additional discovery necessary. They contend, for example, that plaintiffs’ equal protection claim is wholly based upon the fact that the DOB, in determining when to order that a building be demolished, treats occupied buildings differently than vacant buildings. Since defendants acknowledge such disparate treatment, they argue that summary judgment is appropriate. In the first place, the Court does not necessarily agree that plaintiffs’ claim is as limited as defendants suggest. Furthermore, the final manifestation of the equal protection argument, as well as plaintiffs’ other claims relating to the DOB’s refusal to issue vacate and demolition orders, may be altered as a result of information obtained through additional discovery." }, { "docid": "536863", "title": "", "text": "buildings, together with their orders that plaintiffs make repairs costing millions of dollars, subjected plaintiffs to an unconstitutional “taking” of property; and, iii) defendants’ actions denied plaintiffs equal protection of the law, since the DOB has vacated and demolished other buildings similarly situated, whose structural defects were less dangerous than those of plaintiffs’ properties. Both sides are in agreement as to the essential facts of the claims relating to the revocation of plaintiffs’ alteration permit. Plaintiffs have moved for summary judgment under Fed.R.Civ.P. 56 as to liability on these claims, and defendants have cross-moved for summary judgment. Defendants additionally seek summary judgment on plaintiffs’ claims regarding the DOB’s failure to vacate and demolish plaintiffs’ property. Based on the findings of fact and conclusions of law included herein, pursuant to Fed.R.Civ.P. 52(a), the Court grants defendants’ motion for summary judgment as to plaintiffs’ permit revocation claims, but denies the motion as to plaintiffs’ claims concerning the DOB’s failure to issue vacate and demolition orders. I. DOB’S REVOCATION OF THE ALTERATION PERMIT A. SUBSTANTIVE DUE PROCESS Plaintiffs contend that revocation of their alteration permit for failure to comply with § 96-109 of the New York City Zoning Resolution violated their rights to substantive due process. Section 96-109 provides that an alteration permit cannot be issued to the owner of residential property in the Clinton District unless the City’s Department of Housing Preservation and Development issues a “certificate of no harassment” to the DOB. Plaintiffs urge this Court to adopt the reasoning of Judge Broderick in Baco Development Fifty-Fourth Street, Inc. v. City of New York, (S.D.N.Y., 86 Civ. 2440 (VLB)). Judge Broderick found that § 96-109 represented an “undue interference with the use of plaintiff’s land” because it acted to forever bar property owners from obtaining alteration permits if tenant harassment had ever occurred during the history of that property, regardless of how long ago such harassment had occurred. Finding that the statute was not rationally related to the state’s interest in preventing harassment of tenants, Judge Broderick declared the law unconstitutional on its face. STANDING Before proceeding to a consideration of" }, { "docid": "536896", "title": "", "text": "left them with a DOB order demanding that they effect substantial repairs but no valid alteration permit allowing them to make such repairs. Whether plaintiffs would in fact have been unable to perform the repairs ordered by the DOB without an alteration permit is a matter of dispute between the parties. However, nothing in the state court’s decision precluded plaintiffs from reapplying for the necessary permits. . With respect to these claims, plaintiffs allege that the defendants, in league with other City officials, established an unconstitutional official policy known as the \"tenant protection plan” to protect single room occupancy tenants. The purpose of this plan, plaintiffs allege, was to prevent plaintiffs and other New York City property owners \"from lawfully using or developing their property in any manner that would interfere with the possession of tenants or reduce the availability of such housing.\" Plaintiffs’ Third Amended Complaint, at ¶¶ 17, 18. . The present action in this Court was originally before Judge Brieant. In an earlier ruling, Judge Brieant determined that plaintiffs’ claims concerning the DOB's denial of their application for a demolition permit were barred by res judicata, since these claims were considered and rejected by the New York Supreme Court in Weissman III. Weissman v. Fruchtman, memorandum and order, Index No. 83-8958, at 4 (S.D.N.Y. Oct. 31, 1985 (CLB)) (\"Second Memorandum and Order of Judge Brieant”). This Court upheld this determination in Weissman v. Fruchtman, 658 F.Supp. 547 (S.D.N.Y.1987 (PKL)), denying plaintiffs' motion to reargue Judge Brieant’s ruling. Consequently, plaintiffs’ only remaining claims concerning the vacation and demolition of their property relate to the DOB’s failure to order that the premises be vacated and demolished. . In an earlier ruling in this case, Judge Brieant determined that an alteration permit is a property interest under New York law meriting constitutional protection. See Weissman v. Fruchtman, memorandum and order, Index No. 83-8958, at 13 (S.D.N.Y. June 24, 1985 (CLB)) (\"First Memorandum and Order of Judge Brieant”). Defendants do not contest this determination. . At the time of plaintiffs’ permit application, § 96-109 stated: Prior to the issuance of an" }, { "docid": "9901522", "title": "", "text": "this end without affording the owner notice and an opportunity to be heard, or even that it acted in reckless disregard of or with deliberate indifference to whether predeprivation process would be afforded. Indeed, a good deal of undisputed evidence is at odds with this hypothesis. The most important fact, already discussed above, is that the DOB did not issue an Immediate Emergency Declaration which, under the OPPN, would have contemplated demolition within twenty-four hours and thus, as a practical matter, probably without any advance notice to the owner. To the contrary, it issued an Emergency Declaration and issued notices more than two months prior to the date on which the demolition took place. As there is no evidence that the inaccuracies in the notices were deliberate, there is no basis for concluding that any effort was made to demolish the structure without giving advance notice to the owner. Moreover, the fact that seventy-seven days were allowed to pass between the date of the Emergency Declaration and the commencement of demolition is impossible to reconcile with plaintiffs’ theory that City Hall set out to deprive Wantanabe of any opportunity to challenge the proposed action. Plaintiffs rely next on the City’s alleged failure to follow the Administrative Code’s Unsafe Buildings Procedure. It is arguable that compliance with the UBP was required. Zeid’s decision not to make an Immediate Emergency Declaration defeats, at least for purposes of this motion, any contention that the circumstances were so exigent that resort to the Unsafe Building Procedure was excused on the theory that the City had a right to act without notice and a hearing to protect the public from imminent danger. Furthermore, there is good reason to argue that the procedures the City did follow under the OPPN did not satisfy the Unsafe Buildings Procedure for a number of reasons. In the last analysis, however, there is no need to decide these issues. Failure to comply with the Unsafe Buildings Procedure is significant as a constitutional matter to the extent, and only to the extent, that it supports an inference that there was a" }, { "docid": "536857", "title": "", "text": "of Standards and Appeals (“BSA”), an administrative agency authorized to hear such appeals. See New York City Charter, §§ 666(7)(a), (formerly § 666(6)(a)), and 669(a). At the time plaintiffs’ permit was revoked, the Charter further provided that an appeal to the BSA would “stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal [was] taken” filed a certificate with the BSA stating that a stay would “in his opinion cause imminent peril to life or property.” New York City Charter, former § 669(c). On June 18, 1982, defendants Ronald Silvers and Joseph Aguirre, DOB employees, conducted another inspection of 406. Aguirre issued a report stating that 406 did, in fact, require structural repair, but that the damage was not so severe as to justify plaintiffs’ request to vacate and demolish the building. The report did, however, find that some tenants should be temporarily relocated within the building while repairs were being undertaken. A further inspection was conducted by defendants Jerome DeCanio, Deputy Borough Superintendent of Manhattan Borough, and Maurice Beane, a DOB inspector, on June 25, 1982. They similarly concluded that, although the building was in need of immediate repair, a vacate order was not warranted at that time. In June of 1982, plaintiffs commenced the first of numerous legal actions concerning the subject premises in the New York State Supreme Court, entitled Weissman v. City of New York, Index No. 14180/82 (Sup.Ct., N.Y. Co.), rev’d, 96 A.D.2d 454, 464 N.Y.S.2d 764 (1st Dep’t 1983), app. dism., 60 N.Y.2d 815, 469 N.Y.S.2d 700, 457 N.E.2d 807 (1983) (“Weissman I”). Plaintiffs petitioned the court: i) to compel the DOB to issue an order vacating 406 and staying enforcement of the Notices of Violation that had been served on plaintiffs and ii) to set aside as improper the DOB’s revocation of plaintiffs’ alteration permit. The Supreme Court, although finding that the DOB’s refusal to issue an order to vacate was not arbitrary and capricious in light of the standards applicable to such orders, nonetheless held that a temporary vacate order was required to accomplish the" }, { "docid": "536862", "title": "", "text": "order was not justified. Finally, apparently despairing of ever obtaining the DOB approvals necessary to develop their property as they wished, plaintiffs sold the subject premises for $4.1 million on January 6, 1986. The complaint currently before the Court, plaintiffs’ third amended complaint, essentially presents the following constitutional claims. With regard to the revocation of the alteration permit, plaintiffs allege three constitutional violations: i) the revocation violated plaintiffs’ substantive due process rights because it was based on non-compliance with § 96-109, a regulation which plaintiffs contend is unconstitutional; ii) the revocation based upon non-compliance with an unconstitutional statute subjected plaintiffs to an unconstitutional “taking” of property; and, iii) the revocation of their permit without prior notice or an opportunity to be heard violated their procedural due process rights. With regard to the City’s refusal to order that the buildings be demolished or vacated, plaintiffs argue that: i) the decisions by the various DOB officials and employees were arbitrary and capricious, violating plaintiffs’ rights to substantive due process; ii) defendants’ refusal to vacate and demolish plaintiffs’ buildings, together with their orders that plaintiffs make repairs costing millions of dollars, subjected plaintiffs to an unconstitutional “taking” of property; and, iii) defendants’ actions denied plaintiffs equal protection of the law, since the DOB has vacated and demolished other buildings similarly situated, whose structural defects were less dangerous than those of plaintiffs’ properties. Both sides are in agreement as to the essential facts of the claims relating to the revocation of plaintiffs’ alteration permit. Plaintiffs have moved for summary judgment under Fed.R.Civ.P. 56 as to liability on these claims, and defendants have cross-moved for summary judgment. Defendants additionally seek summary judgment on plaintiffs’ claims regarding the DOB’s failure to vacate and demolish plaintiffs’ property. Based on the findings of fact and conclusions of law included herein, pursuant to Fed.R.Civ.P. 52(a), the Court grants defendants’ motion for summary judgment as to plaintiffs’ permit revocation claims, but denies the motion as to plaintiffs’ claims concerning the DOB’s failure to issue vacate and demolition orders. I. DOB’S REVOCATION OF THE ALTERATION PERMIT A. SUBSTANTIVE DUE PROCESS Plaintiffs" }, { "docid": "536897", "title": "", "text": "DOB's denial of their application for a demolition permit were barred by res judicata, since these claims were considered and rejected by the New York Supreme Court in Weissman III. Weissman v. Fruchtman, memorandum and order, Index No. 83-8958, at 4 (S.D.N.Y. Oct. 31, 1985 (CLB)) (\"Second Memorandum and Order of Judge Brieant”). This Court upheld this determination in Weissman v. Fruchtman, 658 F.Supp. 547 (S.D.N.Y.1987 (PKL)), denying plaintiffs' motion to reargue Judge Brieant’s ruling. Consequently, plaintiffs’ only remaining claims concerning the vacation and demolition of their property relate to the DOB’s failure to order that the premises be vacated and demolished. . In an earlier ruling in this case, Judge Brieant determined that an alteration permit is a property interest under New York law meriting constitutional protection. See Weissman v. Fruchtman, memorandum and order, Index No. 83-8958, at 13 (S.D.N.Y. June 24, 1985 (CLB)) (\"First Memorandum and Order of Judge Brieant”). Defendants do not contest this determination. . At the time of plaintiffs’ permit application, § 96-109 stated: Prior to the issuance of an alteration permit by the Department of Buildings for an alteration other than an incidental alteration for a building containing residential uses within the Preservation Area, the Administrator of Housing and Development shall certify to the Department of Buildings: a) That prior to evicting or otherwise terminating the occupancy of any tenant preparatory to any alteration, the owner shall have notified the Administrator of Housing and Development of his intention to alter the building; b) That the eviction and relocation practices followed by the owner of the building satisfy all applicable legal requirements and that no harassment has occurred, (emphasis in original) . In their first amended complaint, plaintiffs had sought injunctive relief as well as monetary damages. After selling their property in January, 1986, however, plaintiffs amended their complaint and dropped their plea for injunctive relief. . By eventually selling their property, plaintiffs rendered the City’s refusal to grant them an alteration permit \"final” in a very practical sense. However, by selling their property without ever applying for a certificate of no harassment, plaintiffs cannot" }, { "docid": "536856", "title": "", "text": "required plaintiffs to perform extensive shoring and to make permanent repairs on 406 after obtaining any permits necessary for the remedial work. Meanwhile, on or about April 30, 1982, plaintiffs were notified by a letter from defendant George Sakona, Manhattan Borough Superintendent of the DOB, that their alteration permit had been revoked for noncompliance with § 96-109 of the Zoning Resolution — specifically, for failure to obtain a certificate from the New York City Department of Housing and Urban Development (“HUD”) stating that no harassment of tenants had occurred on the subject premises (“certificate of no harassment”). Plaintiffs had not been provided with notice or an opportunity to be heard prior to the DOB’s determination to revoke the permit. Plaintiffs did not apply for a certificate of no harassment upon discovering that the basis for the revocation of their permit was their failure to obtain such a certificate. Nor did they appeal the DOB’s decision. The City Charter allows a permittee to appeal the revocation of an alteration permit to the New York City Board of Standards and Appeals (“BSA”), an administrative agency authorized to hear such appeals. See New York City Charter, §§ 666(7)(a), (formerly § 666(6)(a)), and 669(a). At the time plaintiffs’ permit was revoked, the Charter further provided that an appeal to the BSA would “stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal [was] taken” filed a certificate with the BSA stating that a stay would “in his opinion cause imminent peril to life or property.” New York City Charter, former § 669(c). On June 18, 1982, defendants Ronald Silvers and Joseph Aguirre, DOB employees, conducted another inspection of 406. Aguirre issued a report stating that 406 did, in fact, require structural repair, but that the damage was not so severe as to justify plaintiffs’ request to vacate and demolish the building. The report did, however, find that some tenants should be temporarily relocated within the building while repairs were being undertaken. A further inspection was conducted by defendants Jerome DeCanio, Deputy Borough Superintendent of Manhattan Borough, and" }, { "docid": "536855", "title": "", "text": "the application and issued the alteration permit on December 23, 1981. Plaintiffs then engaged a contractor, who gutted the interior of all unoccupied units in 406 in preparation to performing the authorized alterations. After the con- elusion of this work, plaintiffs were informed by their architect and their engineer that the building suffered from numerous serious structural defects. Acting upon this information, plaintiffs notified defendant Irwin Fruchtman, then Commissioner of the DOB, that the construction personnel hired by plaintiffs believed a life-threatening situation to exist at 406. Plaintiffs expressed the opinion that 406 was unsafe and should be vacated immediately because it was in imminent danger of collapse. They also requested that the DOB conduct its own inspection and order that the building be vacated so that it might be demolished. In response to plaintiffs’ request, employees of the DOB conducted an inspection of 406 on April 22, 1982. Substantial structural violations of the Building Code of the City of New York were discovered, and three Notices of Violation were issued to plaintiffs. These Notices required plaintiffs to perform extensive shoring and to make permanent repairs on 406 after obtaining any permits necessary for the remedial work. Meanwhile, on or about April 30, 1982, plaintiffs were notified by a letter from defendant George Sakona, Manhattan Borough Superintendent of the DOB, that their alteration permit had been revoked for noncompliance with § 96-109 of the Zoning Resolution — specifically, for failure to obtain a certificate from the New York City Department of Housing and Urban Development (“HUD”) stating that no harassment of tenants had occurred on the subject premises (“certificate of no harassment”). Plaintiffs had not been provided with notice or an opportunity to be heard prior to the DOB’s determination to revoke the permit. Plaintiffs did not apply for a certificate of no harassment upon discovering that the basis for the revocation of their permit was their failure to obtain such a certificate. Nor did they appeal the DOB’s decision. The City Charter allows a permittee to appeal the revocation of an alteration permit to the New York City Board" }, { "docid": "536860", "title": "", "text": "March 25, 1983, DeCanio cited numerous structural defects in each of the subject buildings. DeCanio expressed the opinion that although immediate shoring of the structures was necessary, a vacate order was not justified at that time. The DOB issued an order requiring plaintiffs to perform the necessary shoring on March 25, 1983. Subsequently, plaintiffs initiated another proceeding in the State Supreme Court, Weissman v. City of New York, Index No. 08019/83 (“Weissman II”). Plaintiffs sought a court order: i) staying enforcement of the DOB’s order to shore the subject premises; and ii) directing the DOB to issue an order to vacate the buildings. Seven days after Weissman II was filed, a team of DOB officials, accompanied by defendant DeCanio, conducted a further inspection of the buildings. In a report dated April 8, 1983, the employees determined that a vacate order should be issued for 406. Defendant DeCanio, who only two weeks earlier had reported that an order to vacate was not warranted, expressed no opposition to this determination. Affidavit of Jerome Decanio [submitted in Weissman 77], sworn to on April 12, 1983, attached as Exhibit 17 to Affidavit of George Sakona, sworn to on June 12, 1988. On April 14, 1983, the order to vacate was issued by the DOB. In a separate report, the DOB maintained that a vacate order was not required for 400-404. Plaintiffs instituted the present action in this Court in December 1983, seeking monetary and injunctive relief pursuant to 42 U.S.C. § 1983, challenging the constitutionality of the foregoing administrative actions by the DOB. Thereafter, in January 1984, plaintiffs applied for a demolition permit which would authorize them to demolish 406. This application was denied by DOB on the grounds that 406 contained housing units and plaintiffs had failed to comply with applicable rent regulations. The denial of the demolition permit was subsequently upheld by the New York Supreme Court in Weissman v. City of New York, Index No. 16976/84 (Sup.Ct., N.Y.Co.1985) (\" Weissman III \"). Further inspections of 406 were undertaken on January 25 and February 22, 1984. DOB inspectors reported that a demolition" }, { "docid": "536889", "title": "", "text": "In such a case, plaintiffs could only stay enforcement of the revocation by obtaining a restraining order from either the BSA or the New York Supreme Court. This exception, however, does not render the appeal procedure unconstitutional. It is well established that where there is an emergency or other “exigent” circumstance, a post-deprivation hearing is adequate to satisfy the requirements of due process. Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599-600, 70 S.Ct. 870, 872-873, 94 L.Ed. 1088 (1950); Patterson v. Coughlin, 761 F.2d 886, 892 (2d Cir.1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986). See also, RR Village Association, Inc. v. Denver Sewer Corp., 826 F.2d 1197, 1204 (2d Cir.1987). A situation involving imminent peril to life or property would without question be an “exigent” circumstance, justifying the use of a post-deprivation hearing. See Ewing, supra, 339 U.S. at 599-600, 70 S.Ct. at 872-873. Thus, even allowing for the possibility that plaintiffs might have been denied a stay in this case because of a risk of imminent peril to property or life, their procedural due process rights would not have been violated. As noted above, the revocation of plaintiffs’ permit was not a sufficiently final determination to render plaintiffs’ procedural due process claim ripe for adjudication. Even if that claim were ripe, however, the former BSA procedures for appealing revocations of alteration permits did not improperly infringe upon plaintiffs’ procedural due process rights. The Court consequently grants defendants’ motion for summary judgment on that issue. II. DOB’S REFUSAL TO ISSUE VACATE OR DEMOLITION ORDERS As noted earlier, plaintiffs have also raised claims concerning the DOB’s various decisions not to vacate or demolish their buildings. Plaintiffs allege that these determinations: (i) were arbitrary and capricious, violating plaintiffs’ rights to substantive due process; (ii) effected a “taking” of plaintiffs’ property without just compensation, and; (iii) denied plaintiffs’ equal protection of the laws, since the DOB ordered other buildings in similar or better structural condition to be vacated or demolished. Defendants have moved for summary judgment as to these claims, while plaintiffs argue that material" }, { "docid": "9901504", "title": "", "text": "near future,” the DOB may issue an Emergency Declaration pursuant to which it expects work to begin within thirty to sixty days. In such cases, however, an unsafe building violation is written. When the DOB proceeds under the OPPN, it does not commence a UBP proceeding or seek a precept. It does, however, send a notice to the owner. D. Legal Theories The complaint asserts nine claims for relief: • The first asserts that the demolition without following the Unsafe Building Procedure deprived Wantanabe of its right to procedural due process in violation of the Fourteenth Amendment. • The second maintains that the demolition in the manner alleged in the complaint was “so arbitrary, conscience- shocking, and oppressive” as to deprive Wantanabe of its right to substantive due process under the Fourteenth Amendment. • The third contends that the defendants, by failing to resort to the Unsafe Building Procedure, intentionally treated Wantanabe “differently from all others similarly situated” without any rational basis. It further alleges that former Mayor Giuliani was motivated by animus against Bullard based on his race and the other circumstances alleged. Accordingly, it maintains that the defendants deprived Wantanabe of the equal protection of the laws in violation of the Fourteenth Amendment. • The fourth asserts that defendants conspired to enter upon Wantanabe’s property for the purpose of depriving it of the equal protection of the laws out of racial animus and thereby violated 42 U.S.C. § 1985(3). • The fifth alleges that all of the defendants were aware of the Unsafe Building Procedure and of the conspiracy to deprive Wantanabe of its rights, yet failed to prevent one another from so acting, allegedly in violation of 42 U.S.C. § 1986. • The sixth claim asserts that the defendants acted in part out of a desire to retaliate against plaintiffs for the prior federal lawsuit and thereby violated 42 U.S.C. § 1985(2). • The seventh contends that the demolition was an uncompensated taking of property of Wantanabe in violation of the Fourteenth Amendment. • The eighth asserts that defendants violated Wantanabe’s rights under Article I, §§ 6," }, { "docid": "9901524", "title": "", "text": "scheme to deprive Wantanabe of notice and an opportunity to be heard. But no such inference properly may be drawn. For one thing, it is undis puted that the City, as a matter of course, does not resort to the Unsafe Building Procedure even where the DOB issues an Emergency, as opposed to an Immediate Emergency, Declaration. Moreover, the undisputed evidence shows that the City tried to notify the owner of the forthcoming demolition long before that demolition occurred or, for that matter, was expected to occur. Thus, the fact that the City did not resort to the Unsafe Building Procedure in this instance is not probative of the existence of any scheme to avoid giving notice. Plaintiffs’ final bit of evidence — the nature of the inspection and the basis for Zeid’s issuance of the Emergency Declaration — is somewhat more troublesome but not ultimately significant to the procedural due process claim. The roller coaster was inspected from afar through a zoom lens and binoculars. The City has not produced the photographs taken on that occasion. Zeid, who said he opted for demolition rather than repair on the basis of the inspection report and the ECB violation notice, admitted that he did not regard Padmore as qualified to make the critical judgment. Moreover, as previously noted, his explanation at his deposition for how he nevertheless determined that the Thunderbolt should be demolished rather than repaired arguably was unconvincing. And while Zeid denied that any influence was brought to bear upon his decision, a jury would not be obliged to credit that denial, particularly in light of Harding’s testimony that it ultimately was he and the Mayor who decided, following the inspection, to demolish the structure. Nevertheless, Zeid’s decision to issue the Emergency Declaration on the evidence before him, even if it was influenced, intentionally or otherwise by higher ups, is not probative of a scheme to tear down the roller coaster without notice. The fact remains that the obvious way to accomplish such an objective would have been to issue an Immediate Emergency Declaration and then to tear down" } ]

[ { "docid": "18594270", "title": "", "text": "shortly after Bache liquidated his account. Bache offered the evidence to help show Hill’s sophistication as an investor, his general trading habits and practices, his lack of credibility as to damages suffered, his control of his account with Bache, and the suitability of the type of trading done in the account. The district court excluded the evidence of subsequent trading, because the transactions occurred after the disputed trading and the court believed they were not probative of Hill’s “state of mind” during the period in question. Even if the evidence was relevant, the court thought the delay and confusion caused by its presentation would outweigh its probity. We recognize that a trial court has broad discretion to determine whether evidence is relevant, and its decision will not be reversed on appeal absent a showing of clear abuse of that discretion. Beacham v. Lee-Norse, 714 F.2d 1010, 1014 (10th Cir.1983). The same standard of review applies to a trial court’s determination, under Fed.R.Evid. 403, that the probative value of the evidence is outweighed by its potential to prejudice or confuse the jury, or to lead to undue delay. Id. Nevertheless, a district court’s decision need not be outlandish or malicious to rise to the status of clear abuse. Rather, the reviewing court need only be firmly convinced that a mistake has been made. We see the subsequent trading evidence differently than the district court did. We believe the evidence of Hill’s later trading was highly relevant to his earlier trading intentions and practices. The later trading began only five months after Hill closed his account with Bache. Apparently the new account, like the account with Bache, was opened at Hill’s instigation; it lasted for a similar short period of time, exhibited a similar type and frequency of trading, followed a similar pattern of phone calls, and resulted in a similar loss (this time, $35,000). Because the second account was handled so similarly and so closely in time, this evidence suggested that Hill was not a completely unsophisticated trader while he was trading with Bache. It seems very probative on the issues" } ]

[ { "docid": "23508950", "title": "", "text": "of a parade of witnesses, each recounting his contention that defendant had laid him off because of his age.” 743 F.2d at 122 (quoting Moorhouse v. Boeing Co., 501 F.Supp. 390, 393 n. 4 (E.D.Pa.), aff\\'d mem., 639 F.2d 774 (3d Cir.1980)). Thus, the court concluded that the error could not be considered harmless. Id. C. The testimony of Owens and Dolan about the alleged statement to them that they were being terminated because they were too old should have been excluded. First, it was not relevant. Pierce, who made the decision to terminate Schrand, was not involved in the decision to terminate either Owens or Dolan. Neither of the witnesses worked at the time of termination in the Ohio Valley Region or the Southern Division of Federal Pacific. Further, Pierce testified that the Cincinnati office took over the accounts of the Dayton office. There was no such testimony about consolidation of branches with respect to the termination of Owens and Dolan. Thus, there was no evidence from which the alleged statements of the witnesses could logically or reasonably be tied to the decision to terminate Schrand. This is especially so in light of the fact that Schrand has expressly stated that he was not attempting to establish a pattern and practice case. The fact that two employees of a national concern, working in places far from the plaintiff’s place of employment, under different supervisors, were allegedly told they were being terminated because they were too old, is simply not relevant to the issue in this case. Schrand made no claim that he was told he was being terminated because he was too old. He relied entirely on circumstantial evidence. We also conclude that the evidence should have been excluded under Rule 403. With no other direct evidence of age discrimination in the case, the impact of the two former employees’ testimony would be great. Thus, even if that evidence were relevant, we believe its probative value was substantially outweighed by the danger of unfair prejudice flowing from its admission. Although it had no direct bearing on the issue to" }, { "docid": "23522380", "title": "", "text": "v. American Convenience Prods., Inc., 750 F.2d 1405, 1414-15 (7th Cir.1984)). “The trier of fact may rely on the evidence introduced to establish the prima facie case and any inferences properly drawn therefrom.” Ibid. In this ease, Carmike claims that it more than met its burden of articulation, presenting at least three legitimate non-discriminatory reasons for Cooley’s discharge. Although the jury found those reasons to be pretextual, Carmike contends that the weight of the admissible evidence did not support the jury’s finding that the company had discriminated. Rather, Carmike maintains, the court abused its discretion under Federal Rule of Evidence 403 and committed reversible error by allowing the jury to hear highly inflammatory testimony about Patrick’s concentration-camp remark during his teens and about his later comments concerning spending Thanksgiving with his grandmother (“the grandmother comment”). The defendants argue that those statements prejudiced the jury, resulting in an irrational verdict. In addition, Carmike appeals from the court’s decision to admit statements that it believes were inadmissible under the hearsay rules. Fed.R.Evid. 801 et seq. After the jury verdict, Carmike moved the district court for a new trial. The district judge, reflecting on his admission of the challenged testimony, wrote in his memorandum denying the motion: If the Court had it to do over again, it would have ruled out, on Fed.R.Evid. 403 grounds, the “concentration camp” statement allegedly made by Mr. Patrick when he was a young man. However, in view of evidence of other statements made by Mr. Patrick ... this ruling had no bearing on the outcome of the case and, if error, it is harmless error. Carmike responds that the quotation was too inflammatory to be “harmless.” We review the district court’s evidentiary decisions for abuse of discretion, and we will reverse only when we find that such abuse of discretion has caused more than harmless error. United States v. Markarian, 967 F.2d 1098, 1108 (6th Cir.1992), cert. denied, - U.S.-, 113 S.Ct. 1344, 122 L.Ed.2d 726 (1993); Fed.R.Civ.P. 61. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair" }, { "docid": "23508953", "title": "", "text": "firmly convinced that a mistake has been made. Hill v. Bache Halsey Stuart Shields, Inc., 790 F.2d 817, 826 (10th Cir.1986). In view of our decision in Chappell, where we followed Haskell in finding similar testimony to lack relevancy and to create a danger of prejudice that would substantially outweigh any probative value it might have, we find that the district court did commit a clear error in admitting the “too old” statements. The testimony of Dolan concerning company policies was admissible, however, as it tended to show that the policy of retaining more senior employees during a period of reduction was not followed in Schrand’s case. Thus it was relevant to the central issue in the case. We cannot hold the error in this case harmless. As in Mitroff, the inadmissible testimony was “arguably ... the strongest evidence in plaintiffs favor at trial.” 797 F.2d at 277. Additionally, this is a close case. Federal Pacific had suffered losses for several years before Schrand was terminated, and its national work force had been reduced by one-third. Although there was some delay, the Dayton sales office was eventually closed and its operations were combined with those of the Cincinnati office. Justice Antonin Scalia, then a circuit judge, discussed the harmless error doctrine in the context of error in admission of evidence, in Jordan v. Medley, 711 F.2d 211 (D.C.Cir.1983). He wrote: We must ask, finally, whether wrongful admission of the testimony affected appellant’s “substantial rights,” see 28 U.S.C. § 2111 (1976); Fed.R.Evid. 103; Fed.R.Civ.P. 61; or was instead harmless error. That inquiry involves an assessment of the likelihood that the error affected the outcome of the case. See United States ex rel. D’Agostino Excavators, Inc. v. Heyward Robinson Co., 430 F.2d 1077, 1083 (2d Cir.1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 582, 27 L.Ed.2d 632 (1971). As the Supreme Court has described the test: “[I]f one cannot say, with fair assurance, ... that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Kotteakos v. United States, 328 U.S. 750," }, { "docid": "7931116", "title": "", "text": "Defendants moved for mistrial when, during cross-examination, Officer Galloway referred to “the residence on Decatur.” However, only Lloyd raises the denial of his motion as an issue on appeal. \"We review the denial of a motion for mistrial for an abuse of discretion.” United States v. Chambers, 944 F.2d 1253, 1263 (6th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1217, 117 L.Ed.2d 455 (1992). See also United States v. Atisha, 804 F.2d 920, 926 (6th Cir.1986) (stating that appellate court must decide when trial court has abused its discretion by failing to grant mistrial), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made. In re Bendectin Litig., 857 F.2d 290, 307 (6th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 (1989); Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 156-57 (6th Cir.1988). We find that Galloway’s references to Decatur Street were only prejudicial to Winston, and not to Lloyd. Lloyd’s statements about Winston having drugs at 1098 Decatur would have been admissible against Lloyd had Lloyd not been jointly tried with Winston. See Fed.R.Evid. 801(d)(2). These statements were only inadmissible hearsay as against Winston. See Bruton, 391 U.S. at 137, 88 S.Ct. at 1628-29. Furthermore, it was Lloyd’s counsel whose questions elicited Galloway’s reference to the house on Decatur. Thus, even if the question of whether the court should have granted Winston’s motion for mistrial is a close question, the court clearly did not abuse its discretion in denying Lloyd’s motion for mistrial. IV. After the court denied Lloyd’s motion for mistrial, Lloyd requested permission to cross-examine Galloway about the statements Lloyd had made upon his arrest. The court denied the request under Rule 403 of the Federal Rules of Evidence. Rule 403 provides that evidence may be excluded, even though relevant, “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” “It is well settled that a trial judge’s discretion in" }, { "docid": "17054590", "title": "", "text": "testimony; Williams contends, was evidence of a pattern and practice at TNN of refusing to interview blacks. Once again, we review a district court’s decision to exclude evidence under Fed.R.Evid. 403 only “for an abuse of discretion that affected the substantial rights of a party.” Black, 15 F.3d at 587. In Schrand v. Federal Pacific Electric Co., 851 F.2d 152 (6th Cir.1988), this court considered the district court’s admission of testimony of two former employees of the defendant, which the plaintiff alleged had terminated him due to age discrimination, about their own terminations. These employees testified “that they were told they were terminated because they were too old.” Id. at 155. This court concluded first that the evidence was not relevant, and second that it should have been excluded under Rule 403: First, it was not relevant. [The supervisor] who made the decision to terminate [the plaintiff] was not involved in the decision to terminate either [of the former employees]. Neither of the witnesses worked at the time of termination [in the division or region in which the plaintiff worked].... [T]here was no evidence from which the alleged statements of the witnesses could logically or reasonably be tied to the decision to terminate [the plaintiff] .... The fact that two employees of a national concern, working in places far from the plaintiffs place of employment, under different supervisors, were allegedly told they were being terminated because they were too old, is simply not relevant to the issue in this case.... We also conclude that the evidence should have been excluded under Rule 403. With no other direct evidence of age discrimination in the case, the impact of the two former employees’ testimony would be great. Thus, even if that evidence were relevant, we believe its probative value was substantially outweighed by the danger of unfair prejudice flowing from its admission. Although it had no direct bearing on the issue to be decided — whether [the plaintiff] was discharged because of his age — this testimony embellished the circumstantial evidence directed to that issue by adding “smoking gun” type evidence. It" }, { "docid": "17054591", "title": "", "text": "in which the plaintiff worked].... [T]here was no evidence from which the alleged statements of the witnesses could logically or reasonably be tied to the decision to terminate [the plaintiff] .... The fact that two employees of a national concern, working in places far from the plaintiffs place of employment, under different supervisors, were allegedly told they were being terminated because they were too old, is simply not relevant to the issue in this case.... We also conclude that the evidence should have been excluded under Rule 403. With no other direct evidence of age discrimination in the case, the impact of the two former employees’ testimony would be great. Thus, even if that evidence were relevant, we believe its probative value was substantially outweighed by the danger of unfair prejudice flowing from its admission. Although it had no direct bearing on the issue to be decided — whether [the plaintiff] was discharged because of his age — this testimony embellished the circumstantial evidence directed to that issue by adding “smoking gun” type evidence. It offered an emotional element that was otherwise lacking.... In addition to creating prejudice that substantially outweighed its probative value, the testimony tended to confuse the issue by focusing the jury’s attention on two totally unrelated events, a consideration under Rule 403. Id. at 156. There is no discernible difference between the rationale in Schrand and the circumstances present here. Moore’s testimony regarding his non-hire had no relevance to Williams’s case. Moore applied for a different position, with different qualifications and hiring requirements; he did so six years prior to Williams’s application; and different people at TNN reviewed his application. The rejection of Moore’s application, therefore, has no apparent connection to that of Williams’s application. Further, it does not appear that Moore had any explanation for why he was not hired, beyond rank speculation; he certainly does not suggest that, like Williams, he was not hired because the individual in charge of hiring only hired his cronies. Finally, as in Schrand, the testimony would have led to a confusion of the issues, requiring TNN to present" }, { "docid": "22037256", "title": "", "text": "court’s admissibility ruling, but would be making a de novo determination based on post-conviction developments or articles. This is not the function of an appellate court. This scientific report is evidence just as the other scientific reports’ and exhibits introduced at the Frye hearing are evidence; it is not judicial precedent that we must consider retroactively up until the date the decision in this case is handed down. Thus, as noted below, in addressing the admissibility of the DNA evidence presented at trial, we find that the key is whether the testimony met the requirements of Federal Rule of Evidence 702 at the time of the district court’s admissibility determination, not whether subsequent events provide evidence that contradicts or calls into question the district court’s view at the time of its admissibility ruling. In any ease, we note that the substance of the criticisms in the NRC Report, including the possibility of ethnic substructure, is before us in the form of the testimony from defendants’ expert witnesses. Thus, we do consider the substance of the NRC Report’s criticisms; we do not consider only the collective opinion of the NRC and \"the NAS and the synopsis of these criticisms in the report itself. D. Standards Used in Admissibility Determination For the reasons outlined below, we affirm the district court’s admission of the DNA testimony and evidence, although for reasons in addition to those stated by the district court, because the Supreme Court, subsequent to the district court’s order, held that the Frye test is no longer controlling and that Rule 702 now governs. 1. Standard of Review We review the trial court’s admission of testimony and other evidence under the abuse of discretion standard. Mitroff v. Xomox Corp., 797 F.2d 271, 275 (6th Cir.1986). Even if the trial court abuses its discretion, a new trial is not required unless “substantial rights” of a party are affected. Fed.R.Crim.P. 52(a); Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 103 (6th Cir.1989). Thus, an abuse of discretion that does not affect substantial rights is harmless error and is to be disregarded. Fed.R.Crim.P." }, { "docid": "23508952", "title": "", "text": "be decided — whether Schrand was discharged because of his age — this testimony embellished the circumstantial evidence directed to that issue by adding “smoking gun” type evidence. It offered an emotional element that was otherwise lacking as a basis for a verdict in Schrand’s favor. See Notes of Advisory Committee to Rule 403. In addition to creating prejudice that substantially outweighed its probative value, the testimony tended to confuse the issue by focusing the jury’s attention on two totally unrelated events, a consideration under Rule 403. If the jury was convinced that the testimony of Owens and Dolan was truthful, there was a distinct danger that the jury would assume a connection that was never proven between the terminations of the two witnesses and that of Schrand. D. This court applies an abuse of discretion standard in reviewing decisions of a trial court on the admission of evidence. Mitroff v. Xomox Corp., 797 F.2d 271, 275 (6th Cir.1986). In the context of an eviden-tiary ruling, abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made. Hill v. Bache Halsey Stuart Shields, Inc., 790 F.2d 817, 826 (10th Cir.1986). In view of our decision in Chappell, where we followed Haskell in finding similar testimony to lack relevancy and to create a danger of prejudice that would substantially outweigh any probative value it might have, we find that the district court did commit a clear error in admitting the “too old” statements. The testimony of Dolan concerning company policies was admissible, however, as it tended to show that the policy of retaining more senior employees during a period of reduction was not followed in Schrand’s case. Thus it was relevant to the central issue in the case. We cannot hold the error in this case harmless. As in Mitroff, the inadmissible testimony was “arguably ... the strongest evidence in plaintiffs favor at trial.” 797 F.2d at 277. Additionally, this is a close case. Federal Pacific had suffered losses for several years before Schrand was terminated, and its national work force had been reduced by" }, { "docid": "23508949", "title": "", "text": "evidence.” Rule 402 provides that evidence which is not relevant is inadmissible. Rule 403 provides that evidence, although relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” In Chappell v. GTE Products Corp. this court upheld the district court’s exclusion of statements by an employer’s agents which purportedly showed an age bias in the company’s personnel practices. We found the comments “too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination,” citing Haskell v. Kaman Corp., 743 F.2d 113, 120 (2d Cir.1984). Chappell, 803 F.2d at 268 n. 2. In Haskell the court held that testimony of former employees of the defendant about the circumstances surrounding their terminations and those of other employees was not relevant to the question of whether the plaintiff was terminated for age-related reasons and, in addition, should have been excluded under Rule 403. The court further found that the “strongest jury instructions could not have dulled the impact of a parade of witnesses, each recounting his contention that defendant had laid him off because of his age.” 743 F.2d at 122 (quoting Moorhouse v. Boeing Co., 501 F.Supp. 390, 393 n. 4 (E.D.Pa.), aff\\'d mem., 639 F.2d 774 (3d Cir.1980)). Thus, the court concluded that the error could not be considered harmless. Id. C. The testimony of Owens and Dolan about the alleged statement to them that they were being terminated because they were too old should have been excluded. First, it was not relevant. Pierce, who made the decision to terminate Schrand, was not involved in the decision to terminate either Owens or Dolan. Neither of the witnesses worked at the time of termination in the Ohio Valley Region or the Southern Division of Federal Pacific. Further, Pierce testified that the Cincinnati office took over the accounts of the Dayton office. There was no such testimony about consolidation of branches with respect to the termination of Owens and Dolan. Thus, there was no evidence from which the alleged statements of the witnesses" }, { "docid": "17054592", "title": "", "text": "offered an emotional element that was otherwise lacking.... In addition to creating prejudice that substantially outweighed its probative value, the testimony tended to confuse the issue by focusing the jury’s attention on two totally unrelated events, a consideration under Rule 403. Id. at 156. There is no discernible difference between the rationale in Schrand and the circumstances present here. Moore’s testimony regarding his non-hire had no relevance to Williams’s case. Moore applied for a different position, with different qualifications and hiring requirements; he did so six years prior to Williams’s application; and different people at TNN reviewed his application. The rejection of Moore’s application, therefore, has no apparent connection to that of Williams’s application. Further, it does not appear that Moore had any explanation for why he was not hired, beyond rank speculation; he certainly does not suggest that, like Williams, he was not hired because the individual in charge of hiring only hired his cronies. Finally, as in Schrand, the testimony would have led to a confusion of the issues, requiring TNN to present testimony explaining why Moore had not been hired. y. Williams argues, finally, that the “evidence at trial does not support the jury’s verdict.” He disputes the validity of the verdict with regard both to his disparate treatment and disparate impact claims, as well as with regard to the retaliation claim. With respect, first, to his disparate treatment and disparate impact claims, Williams contends that because Jones, a white male, hired only people he knew or knew of, and because those people were always white males, the plaintiff has proved that “discretionary, subjective criteria are employed to hire át TNN,” and that “[w]ho you know is more important than what you know.” We review the district court’s denial of the plaintiffs motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b)-de novo. K & T Enterprises, Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir.1996). In a federal question case, the standard of review for a Rule 50 motion based on sufficiency of the evidence is identical to that used by the" }, { "docid": "23430166", "title": "", "text": "probative value of this testimony is grossly exaggerated. If there were any evidence linking appellant to the drug trade, the probative value of this testimony might more closely resemble the government’s representations. The government, however, has come forth with no such evidence. Consequent ly, the probative value of this evidence in this gun charge trial is indeed limited. This de minimis relevance was substantially outweighed by the highly prejudicial impact that the insinuation of drug crimes had in this trial. Of course, all relevant evidence is prejudicial; Rule 403 is concerned only with limiting “unfair” prejudice. Mullen, 853 F.2d at 1134. In Mullen, we characterized “unfair prejudice” as “the possibility that the evidence will excite the jury to make a decision on the basis of a factor unrelated to the issues properly before it.” Id. The drug courier testimony presented precisely this danger. The relevant issues in dispute at appellant’s trial were his knowing possession of a gun and his intent to board the shuttle to New York. The drug courier testimony had very little probative value to offer on these issues while the government made appellant’s status as a drug courier the centerpiece of its case. Under these circumstances, the inherent risk of inflaming the jury, and of misleading it into focusing on the government’s unsubstantiated and uncharged allegations of drug crimes, was unacceptably high. The government’s use of the drug courier profile at trial transformed this powerful tool of law enforcement into an instrument of unjust accusation. Our review of the record leaves us firmly convinced that the trial court abused its discretion in admitting the drug courier testimony. III. The government argues that in the face of the convincing evidence of appellant’s guilt and the trial court’s limiting instruction, the error in admitting this evidence was harmless. We disagree. To be sure, errors under Rule 403 are subject to the harmless error test: “whether it is probable that the error could have affected the verdict reached by the particular jury in the particular circumstances of the trial.” United States v. Morison, 844 F.2d 1057, 1078 (4th Cir.)," }, { "docid": "14346706", "title": "", "text": "137-B property, any information of activities that occurred at Box 198 was irrelevant, and the admission of this evidence created a substantial danger that the jury would reject his innocent ownership defense because of his knowledge of activities occurring elsewhere. A trial court’s decision on the admission of evidence of this nature is reviewed pursuant to an abuse of discretion standard. Schrand v. Federal Pacific Elec. Co., 851 F.2d 152, 157 (6th Cir.1988). The admissibility of relevant, potentially prejudicial evidence under Rule 403 is placed within the sound discretion of the trial court. United States v. Brady, 595 F.2d 359, 361 (6th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 129, 62 L.Ed.2d 84 (1979). After reviewing the record, we cannot say the district court abused its discretion in admitting the evidence of illegal activities at Box 198. Federal Rules of Evidence 401 states that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 403 limits the introduction of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The evidence pertaining to Box 198 is clearly relevant. The same day that the search warrant was executed at Box 137-B, a search warrant was executed at the Box 198 property, which is only a short distance from Box 137-B. John Mayle was discovered at Box 198, as were numerous items useful for narcotics trafficking. Such information certainly makes it more likely that John Mayle knew of the illegal activities that took place at the defendant property. As the jury interrogatories make clear, Mayle’s knowledge was the only issue being contested. Moreover, Mayle has not proven how any dangers of prejudice substantially outweigh the probative value of this evidence. Therefore, we find this last assertion of error to be without merit. REVERSED and REMANDED." }, { "docid": "23508945", "title": "", "text": "and a chart of the age of its sales employees. In reviewing a district court’s denial of a motion for JNOV, we must view the evidence in the light most favorable to the party opposing the motion, and draw from the evidence all reasonable inferences in that party’s favor. Chappell v. GTE Products Corp., 803 F.2d 261, 265 (6th Cir. 1986), cert. denied, — U.S. —, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987), and cases cited therein. Thus, we do not “weigh the evi dence, pass on the credibility of witnesses, or substitute [our] judgment for that of the jury.” Id. Applying this standard of review, we find that the district court properly denied Federal Pacific’s motion. The evidence of a violation was not overwhelming, and Federal Pacific articulated a nondiscriminatory reason for Schrand’s termination. Nevertheless, there was admissible evidence from which an inference could reasonably be drawn that age was “a factor” in the decision to discharge Schrand. Id. at 266 (Plaintiff has “only to show that age was ‘a,’ and not ‘the,’ determining factor in the employer’s personnel decision.”). III. A. At a pretrial conference Federal Pacific’s counsel advised the district court that he objected to the proposed introduction of testimony by two former sales employees of Federal Pacific, from other divisions and regions, concerning the circumstances surrounding their terminations. After denying Federal Pacific’s motion in limine the district court permitted Robert Owens and Thomas Dolan to testify. Federal Pacific renewed its objections when these witnesses were called at trial, and made a motion for a mistrial after their testimony was received. Both Owens and Dolan testified that when they were terminated they were told that it was in part because they were too old. Robert Owens was a field sales engineer, the same position that Schrand held, from 1967 to 1982, when he was terminated at age 59. Owens worked in Federal Pacific’s Albuquerque, New Mexico sales office from 1977 to 1982. He testified that the regional manager who notified him that he was terminated said that “because of lack of progress they were going to close" }, { "docid": "23476113", "title": "", "text": "the witness has had a sufficient opportunity to observe the accused so as to draw a rational conclusion about the intent of the accused.”). Admittedly, Miller’s testimony is not strongly supported; Pepsi asserts, accordingly, that, under Mitroff v. Xomox Corp., 797 F.2d 271, 275-76 (6th Cir.1986), Miller’s testimony should have been excluded. The Sixth Circuit in Mitroff held that the admission of one employee’s testimony concerning a statement by an assistant personnel manager that there was age discrimination in the corporation was error. The court held that Rule 701 could not be satisfied since there was no basis for the witness’ testimony because the personnel manager denied making the statement and because no other basis for the opinion was disclosed. Id. at 276. But, in this case, Miller’s testimony was based on his own experience in the corporation, not a hearsay statement by a third party. Mitroff is not controlling. We conclude, with some hesitancy it must be admitted, that the trial court did not abuse its discretion in admitting this testimony. The decisive factor, we readily acknowledge, is that the district court is best suited to determine whether Fed.R. Evid. 701 has been satisfied. Basically, Rule 701 is a rule of discretion. ... The trier of fact can normally be depended upon ... to pick up the non-verbal signals, which, although absent from the record, indicate fairly clearly when the witness is describing what he saw and when he is describing what he thinks happened; the trier of fact also should generally be depended upon to give whatever weight or credibility to the witness’ opinion as may be due. 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 701[02], at 701-31 to -32 (1988) (footnotes omitted). IV. PEPSI’S OBJECTIONS TO THE JURY INSTRUCTIONS Pepsi also complains of the district court’s refusal to include two jury instructions. The issue is whether the trial court abused its discretion in so refusing. See Bryan v. Cargill, Inc., 723 F.2d 1202, 1204 (5th Cir.1984). Pepsi’s first proposed instruction stated that Hansard must prove “that his leaving Pepsi-Cola’s employment was the result of a" }, { "docid": "2688677", "title": "", "text": "for abuse of discretion a district court’s decision to admit evidence. Boyd v. City and County of San Francisco, 576 F.3d 938, 943 (9th Cir.2009). We reverse only if we are “ ‘convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.’ ” Id. (quoting Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir.2000)). “A party seeking reversal for evidentiary error must show that the error was prejudicial, and that the verdict was more probably than not affected as a result.” Id. (quotation omitted). A The district court did not abuse its discretion in admitting the very brief testimony of individual debtors Keri Henan and Ken Lucero concerning their experiences of being sued by JRL. JRL argues that the testimony was irrelevant under Federal Rule of Evidence 401 and that it should have been excluded on that basis. Alternatively, JRL contends that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice and thus that the evidence should have been excluded under Rule 403. Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” See United States v. Curtin, 489 F.3d 935, 943 (9th Cir.2007) (en banc). If evidence is relevant, it is generally admissible under Federal Rule of Evidence 402. See id. However, relevant evidence must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Fed.R.Evid. 403. The district court did not abuse its discretion in concluding that the testimony of JRL’s conduct in similar cases was relevant to show intent, absence of mistake, malice, willfulness, and reprehensibility. Pursuant to the FDCPA, McCollough had to prove that JRL’s violations were “intentional” to obtain the maximum amount of FDCPA statutory damages and to counter JRL’s bona fide error defense. 15 U.S.C. § 1692k(b)(l) (requiring consideration, among other relevant factors, of “the extent to which such noncompliance" }, { "docid": "23522381", "title": "", "text": "jury verdict, Carmike moved the district court for a new trial. The district judge, reflecting on his admission of the challenged testimony, wrote in his memorandum denying the motion: If the Court had it to do over again, it would have ruled out, on Fed.R.Evid. 403 grounds, the “concentration camp” statement allegedly made by Mr. Patrick when he was a young man. However, in view of evidence of other statements made by Mr. Patrick ... this ruling had no bearing on the outcome of the case and, if error, it is harmless error. Carmike responds that the quotation was too inflammatory to be “harmless.” We review the district court’s evidentiary decisions for abuse of discretion, and we will reverse only when we find that such abuse of discretion has caused more than harmless error. United States v. Markarian, 967 F.2d 1098, 1108 (6th Cir.1992), cert. denied, - U.S.-, 113 S.Ct. 1344, 122 L.Ed.2d 726 (1993); Fed.R.Civ.P. 61. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.... Fed.R.Evid. 403. “Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission.” Ibid, advisory committee’s note. In age discrimination cases, this court has examined statements allegedly showing employer bias by considering whether the comments were made by a decision maker or by an agent within the scope of his employment; whether they were related to the decision-making process; whether they were more than merely vague, ambiguous, or isolated remarks; and whether they were proximate in time to the act of termination. ■ However, this court has not previously expressly spelled out these considerations as a formal standard. We do so today. Recently, in Phelps v. Yale Security, Inc., 986 F.2d 1020 (6th Cir.), cert. denied, - U.S. -, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993), the plaintiff employee produced evidence that, eight months before her layoff, her employer had told her that she had been transferred from a more responsible position" }, { "docid": "23522382", "title": "", "text": "prejudice, confusion of the issues, or misleading the jury.... Fed.R.Evid. 403. “Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission.” Ibid, advisory committee’s note. In age discrimination cases, this court has examined statements allegedly showing employer bias by considering whether the comments were made by a decision maker or by an agent within the scope of his employment; whether they were related to the decision-making process; whether they were more than merely vague, ambiguous, or isolated remarks; and whether they were proximate in time to the act of termination. ■ However, this court has not previously expressly spelled out these considerations as a formal standard. We do so today. Recently, in Phelps v. Yale Security, Inc., 986 F.2d 1020 (6th Cir.), cert. denied, - U.S. -, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993), the plaintiff employee produced evidence that, eight months before her layoff, her employer had told her that she had been transferred from a more responsible position because she was too old to continue at that prior secretarial position. A month later that same employer told her that her fifty-fifth birthday was a cause for concern. Nevertheless, this court upheld a district judge’s judgment for the defendant employer, notwithstanding the jury verdict for plaintiff, because the plaintiffs evidence consisted only of such isolated and ambiguous comments by the employer. ' We held them to be “too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination” because the comments had been made nearly a year before the layoff, too long before the layoff to have influenced the termination decision. In addition, we regarded the comment about the birthday to be too ambiguous to establish any conclusive inferences. Id. at 1025-26. In Mitroff v. Xomox Corp., 797 F.2d 271 (6th Cir.1986), the plaintiff and another witness testified that one of the employer’s assistant personnel managers had told them that the company practiced age discrimination. This court held that the district court had abused its discretion by admitting such" }, { "docid": "23508951", "title": "", "text": "could logically or reasonably be tied to the decision to terminate Schrand. This is especially so in light of the fact that Schrand has expressly stated that he was not attempting to establish a pattern and practice case. The fact that two employees of a national concern, working in places far from the plaintiff’s place of employment, under different supervisors, were allegedly told they were being terminated because they were too old, is simply not relevant to the issue in this case. Schrand made no claim that he was told he was being terminated because he was too old. He relied entirely on circumstantial evidence. We also conclude that the evidence should have been excluded under Rule 403. With no other direct evidence of age discrimination in the case, the impact of the two former employees’ testimony would be great. Thus, even if that evidence were relevant, we believe its probative value was substantially outweighed by the danger of unfair prejudice flowing from its admission. Although it had no direct bearing on the issue to be decided — whether Schrand was discharged because of his age — this testimony embellished the circumstantial evidence directed to that issue by adding “smoking gun” type evidence. It offered an emotional element that was otherwise lacking as a basis for a verdict in Schrand’s favor. See Notes of Advisory Committee to Rule 403. In addition to creating prejudice that substantially outweighed its probative value, the testimony tended to confuse the issue by focusing the jury’s attention on two totally unrelated events, a consideration under Rule 403. If the jury was convinced that the testimony of Owens and Dolan was truthful, there was a distinct danger that the jury would assume a connection that was never proven between the terminations of the two witnesses and that of Schrand. D. This court applies an abuse of discretion standard in reviewing decisions of a trial court on the admission of evidence. Mitroff v. Xomox Corp., 797 F.2d 271, 275 (6th Cir.1986). In the context of an eviden-tiary ruling, abuse of discretion exists when the reviewing court is" }, { "docid": "3378528", "title": "", "text": "their decision to vote in favor of his termination. Because our review of the record does not leave us with a definite and firm conviction that a mistake has been committed, we affirm the district court’s ruling on Plaintiffs Title VII claipi. E. Evidentiary Rulings 1. Limitation of Testimony by Belinda Biscoe Plaintiff challenges the district court’s refusal to permit Belinda Biscoe to /‘testify regarding retaliatory and harassing conduct by [D]efendants similar to that experienced by [Plaintiff].” In excluding this testimony, the district court, concluded that- there was insufficient similarity between Plaintiffs and Biscoe’s situations to justify the testimony, that the testimony was irrelevant and would be confusing to the jury, and that admission of the evidence would require the court to conduct a separate trial of Biscoe’s claims. This court . reviews the district court’s exclusion of evidence under an abuse of discretion standard. See United States v. Davis, 40 F.3d 1069, 1076 (10th Cir.1994). “[A] trial court’s decision will not be disturbed unless the appellate court has a definite and firm conviction that' the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” McEwen v. City of Norman, Okla., 926 F.2d 1539, 1553 (10th Cir.1991) (internal quotations omitted). Testimony of other employees may be relevant in assessing an employer’s retaliatory intent if the testimony establishes a pattern of retaliatory behavior or tends to discredit the employer’s assertion of legitimate motives. See, e.g., Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir.1990); Morris v. Washington Metro. Area Transit Auth., 702 F.2d 1037, 1045-47 (D.C.Cir.1983). For such testimony to be relevant, however, the plaintiff must show the circumstances involving the other employees are'such that their statements can ‘“logically or reasonably be tied to the decision to terminate [the plaintiff].’ ” Spulak, 894 F.2d at 1156 (alteration in original) (quoting Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 156 (6th Cir.1988)). Moreover, even if relevant, such evidence .may be excluded under Federal Rule of Evidence 403 if its probative value is substantially outweighed by the danger of unfair prejudice," }, { "docid": "23508948", "title": "", "text": "and you’re too old.” Federal Pacific cross-examined Dolan and called as witnesses the officials who notified Owens and Dolan of their terminations. Both testified that the terminations were made as part of a reduction in force brought about by adverse business conditions, and both denied telling the employees that age was a factor and denied that age was in fact a consideration. B. Federal Pacific objected on several grounds to the testimony by Owens and Dolan that they were told they were terminated because they were too old: (1) that it was inadmissible hearsay; (2) that it was irrelevant; and (3) that the danger of unfair prejudice far outweighed any probative value the evidence might have. The district court did not rule on the hearsay objection, but found the testimony “highly relevant.” We disagree. Relevant evidence is defined in Fed.R. Evid. 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 provides that evidence which is not relevant is inadmissible. Rule 403 provides that evidence, although relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” In Chappell v. GTE Products Corp. this court upheld the district court’s exclusion of statements by an employer’s agents which purportedly showed an age bias in the company’s personnel practices. We found the comments “too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination,” citing Haskell v. Kaman Corp., 743 F.2d 113, 120 (2d Cir.1984). Chappell, 803 F.2d at 268 n. 2. In Haskell the court held that testimony of former employees of the defendant about the circumstances surrounding their terminations and those of other employees was not relevant to the question of whether the plaintiff was terminated for age-related reasons and, in addition, should have been excluded under Rule 403. The court further found that the “strongest jury instructions could not have dulled the impact" } ]

[ { "docid": "11487308", "title": "", "text": "ground for dismissal of the indictment or reversal of a conviction unless the defendant was misled to his prejudice. See generally Williams v. United States, 168 U.S. 382, 389, 18 S.Ct. 92, 42 L.Ed. 509 (1897) (if indictment properly charges offense under some statute in force, it is immaterial that representative of the United States may have supposed that the offense charged was covered by a different statute); United States v. Luis, 418 F.2d 439 (5th Cir. 1969) (bail jumping conviction not reversed where no prejudice was shown by reason of indictment citing statute relating to bail rather than rule relating to bail). Moreover, appellant made no motion to dismiss the indictment or any of its counts. See Fed.R. Crim.P. 12. Turning to appellant’s second contention, the conclusion is inescapable that the conduct proscribed by V.A.M.S. § 560.120 is identical to that made illegal on federal territory by 18 U.S.C. § 2111. Under each, a conviction may be sustained for robbery by force, violence or intimidation. Compare Collins v. McDonald, 258 U.S. 416, 420, 42 S.Ct. 326, 66 L.Ed. 692 (1922), with State v. Sharpe, 326 Mo. 1063, 34 S.W.2d 75, 76-77 (1930), and State v. White, 326 Mo. 1000, 34 S.W.2d 79, 80-81 (1930). The offense defined in 18 U.S.C. § 2111 includes within its reach robbery by means of a dangerous and deadly weapon and thus the use of such weapon describes no separate and independent crime under federal law. The use of a dangerous weapon is no more an essential element of the state offense than it is of the federal crime. See Keeny v. State, supra. Word therefore should have been charged under 18 U.S.C. § 2111, rather than the Assimilative Crimes Act and the Missouri statute. United States v. Patmore, 475 F.2d 752, 753 (10th Cir. 1973) (where the precise act prohibited by the state statute is defined and prohibited by a federal statute, the Assimilative Crimes Act is not to be used and the government is to proceed under the applicable federal statute); see Fields v. United States, 438 F.2d 205 (2d Cir.), cert." } ]

[ { "docid": "21583373", "title": "", "text": "a state statute pursuant to the Assimilative Crimes Act, rather than under the relevant federal statute, the appropriate remedy is not a reversal of the conviction, but rather a vacating of the sentence and a remand to the district court for resentencing. More recently, the Tenth Circuit reached the same conclusion. In United States v. Walker, 557 F.2d 741 (10th Cir. 1977), the court found that Walker had improperly been convicted in the lower court of violat ing a Colorado theft statute as pleaded under the Assimilative Crimes Act, 18 U.S.C. § 13. On appeal, the Government conceded that the criminal act charged in the indictment was punishable under the Federal theft statute, 18 U.S.C. § 661. Declining the opportunity to dismiss, the court stated: It is well settled that an incorrect statutory reference in the indictment does not require reversal where all of the essential elements of the correct statute are otherwise covered, but that any sentence imposed in excess of that allowed under the correct statute must be vacated and the case remanded for resentencing. See also, United States v. Chaussee, 536 F.2d 637 (7th Cir. 1976); United States v. Olvera, 488 F.2d 607 (5th Cir. 1973), cert. denied, 416 U.S. 917, 94 S.Ct. 1625, 40 L.Ed.2d 119 (1974); United States v. Patmore, 475 F.2d 752 (10th Cir. 1973); Dunaway v. United States, 170 F.2d 11 (10th Cir. 1948). Cf. Shirley v. United States, 554 F.2d 767 (6th Cir. 1977) (plea of guilty vacated and case remanded for appropriate proceedings under relevant Federal statute where state penal statute did not distinguish between simple and armed robbery); United States v. Butler, 541 F.2d 730 (8th Cir. 1976) (conviction vacated where no proof of interstate commerce nexus to satisfy relevant Federal statute); United States v. Prejean, 494 F.2d 495 (5th Cir. 1974) (conviction reversed where proof adduced at trial established, if anything, a violation of a separate and distinct offense under state law); United States v. Beard, 436 F.2d 1084 (5th Cir. 1971) (judgment reversed on due process grounds where Government’s theory of guilt under two contradictory statutes was completely" }, { "docid": "21583371", "title": "", "text": "should be affirmed. In Hockenberry v. United States, 422 F.2d 171 (9th Cir. 1970), the Court of Appeals for the Ninth Circuit was asked to set aside, on jurisdictional grounds, an aggravated assault conviction which had been obtained in district court in the mistaken belief that a California penal statute and the Assimilative Crimes Act, 18 U.S.C. § 13, were applicable. Before the appellate court, the Government conceded that the offense should have been alleged as a violation of 18 U.S.C. § 113(c), a Federal statute specifically proscribing assault with a dangerous weapon. Notwithstanding the patent irregularity in the indictment, the court affirmed the conviction. The decision not to dismiss was explained in the following language: The indictment does not conform exactly to the language of the applicable statute, but we are admonished by Rule 7(c), F.R. Crim.P. that ‘[ejrror in the citation [of the statute] or its omission shall not be ground for dismissal of the indictment * * * or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice,’ and by Rule 52(a) that ‘[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.’ Here, no contention is made that Hockenberry was misled to his prejudice, or that the defects or irregularities in the indictment affected substantial rights. The record would not support such a contention if it were made. Similarly, the Eighth Circuit in United States v. Word, 519 F.2d 612 (8th Cir. 1975), cert. denied, 423 U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265 (1975), found that the Government had erroneously secured a conviction under a Missouri robbery statute and the Assimilative Crimes Act, 18 U.S.C. § 13, rather than under the relevant Federal robbery statute, 18 U.S.C. § 2111. Observing that the defendant “was clearly put on notice that he was being charged with armed robbery,” the court held that the flaw in the indictment was not fatal and that reversal was not required. The applicable rule was said to be the following: Where the government wrongfully secures a conviction under" }, { "docid": "11487309", "title": "", "text": "S.Ct. 326, 66 L.Ed. 692 (1922), with State v. Sharpe, 326 Mo. 1063, 34 S.W.2d 75, 76-77 (1930), and State v. White, 326 Mo. 1000, 34 S.W.2d 79, 80-81 (1930). The offense defined in 18 U.S.C. § 2111 includes within its reach robbery by means of a dangerous and deadly weapon and thus the use of such weapon describes no separate and independent crime under federal law. The use of a dangerous weapon is no more an essential element of the state offense than it is of the federal crime. See Keeny v. State, supra. Word therefore should have been charged under 18 U.S.C. § 2111, rather than the Assimilative Crimes Act and the Missouri statute. United States v. Patmore, 475 F.2d 752, 753 (10th Cir. 1973) (where the precise act prohibited by the state statute is defined and prohibited by a federal statute, the Assimilative Crimes Act is not to be used and the government is to proceed under the applicable federal statute); see Fields v. United States, 438 F.2d 205 (2d Cir.), cert. denied, 403 U.S. 907, 91 S.Ct. 2214, 29 L.Ed.2d 684 (1971). See generally Annot. 2 L.Ed.2d 1686 (1958). Where the government wrongfully secures a conviction under a state statute pursuant to the Assimilative Crimes Act, rather than under the relevant federal statute, the appropriate remedy is not a reversal of the conviction, but rather a vacating of the sentence and a remand to the district court for resentencing. United States v. Olvera, 488 F.2d 607 (5th Cir. 1973), cert. denied, 416 U.S. 917, 94 S.Ct. 1625, 40 L.Ed.2d 119 (1974); United States v. Patmore, supra ; Hockenberry v. United States, 422 F.2d 171 (9th Cir. 1970). Accordingly, while we affirm the judgment of conviction, appellant’s sentence under V.A.M.S. § 560.135 and § 556.170 is ordered vacated. The case is remand ed to the District Court for resentencing under 18 U.S.C. § 2111. . 18 U.S.C. § 13 provides: Laws of states adopted for areas within federal jurisdiction Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in" }, { "docid": "21583370", "title": "", "text": "abducts, or carries away and holds for ransom or reward or otherwise any person, except in the ease 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;[ ] The existence of this Federal kidnapping statute precludes resort to the Assimilative Crimes Act and, consequently, to the comparable substantive penal provision of the state of North Carolina. Williams v. United States, supra; United States v. Patmore, 475 F.2d 752 (10th Cir. 1973); Fields v. United States, 438 F.2d 205 (2d Cir. 1971), cert. denied, 403 U.S. 907, 91 S.Ct. 2214, 29 L.Ed.2d 684 (1971). Accordingly, we find that the kidnapping allegation in this case is legally flawed and constitutes error. United States v. Perkins, supra. We are constrained to depart from the Perkins holding, however, in regard to the remedy. For reasons set forth in greater detail below, we are of the view that the conviction should be affirmed. In Hockenberry v. United States, 422 F.2d 171 (9th Cir. 1970), the Court of Appeals for the Ninth Circuit was asked to set aside, on jurisdictional grounds, an aggravated assault conviction which had been obtained in district court in the mistaken belief that a California penal statute and the Assimilative Crimes Act, 18 U.S.C. § 13, were applicable. Before the appellate court, the Government conceded that the offense should have been alleged as a violation of 18 U.S.C. § 113(c), a Federal statute specifically proscribing assault with a dangerous weapon. Notwithstanding the patent irregularity in the indictment, the court affirmed the conviction. The decision not to dismiss was explained in the following language: The indictment does not conform exactly to the language of the applicable statute, but we are admonished by Rule 7(c), F.R. Crim.P. that ‘[ejrror in the citation [of the statute] or its omission shall not be ground for dismissal of the indictment * * * or for reversal of a conviction if the error or omission did not mislead" }, { "docid": "23592084", "title": "", "text": "both Section 24 of the 1933 Act and Section 32(a) of the 1934 Act criminalize the filing of material false statements on documents required under their respective acts. Berger does not contest that Section 24 of the 1933 Act criminalizes the conduct alleged in Count 34. Accordingly, the error alleged by Berger here is one of improper statutory citation, rather than one of substantive error in the indictment. Such an error is not a proper basis for reversal. The Federal Rules of Criminal Procedure counsel that “[u]nless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citation’s omission is a ground to dismiss the indictment or information or to reverse a conviction.” Fed.R.Crim.P. 7(c)(3). Here, the language of the indictment clearly constitutes a satisfactory enumeration of the elements of Section 24 of the 1933 Act. Accordingly, Berger was not “misled to his prejudice,” nor did “defects or irregularities in the indictment affect[his] substantial rights.” Hockenberry v. United States, 422 F.2d 171, 174 (9th Cir.1970). We hold that Count 34 here “describes the activities forming the basis of the charge [under Section 24 of the 1933 Act] with sufficient particularity to assure that the Grand Jury deliberated on the elements of the crime.” Echavarria-Olarte v. Reno, 35 F.3d 395, 398 (9th Cir.1994). Because the defect here was one of form, rather than substance, we decline to reverse his conviction because of the citation error in the indictment. See id. at 399; United States v. Fekri, 650 F.2d 1044, 1046 (9th Cir.1981) (“When there has been no prejudice and the error is merely an error in the citation, reversal is not required.”). 2. Materiality Under Section 24 of the Securities Act of 1933 Assessed from the Reasonable Investor’s Perspective Because we hold that Berger was properly convicted under Section 24 of the 1933 Act, we next consider the proper materiality standard applicable to that provision. We have already determined that under Section 32(a) of the 1934 Act, materiality must be assessed from the perspective of the reasonable investor. For similar reasons, we hold that materiality under" }, { "docid": "2054404", "title": "", "text": "88 U.S.App.D.C. 160, 188 F.2d 627, decided by the Court of Appeals for this Circuit in 1951, provides an appropriate summation to this Court’s holding herein. In Lucas, the indictment charged criminal activities on August 17, 1950, whereas the proof established the commission of the alleged crime on August 17, 1949. In affirming the defendant’s conviction notwithstanding the erroneous date in the indictment, the Court held: We think the case comes within Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., to the effect that “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” This Rule, as here applied, does not offend the Fifth Amendment. It is apparent from what has been said that there was no prejudice to substantial rights; and since the error was clerical the indictment did not fail to meet the requirements of a statement of the essential facts constituting the offense. Rule 7(c). 188 F.2d at 628. Accord, United States v. Zambito, 315 F.2d 266, 269 (4th Cir. 1963), cert. denied, 373 U.S. 924, 83 S.Ct. 1524, 10 L.Ed.2d 423 (1963). II. Upon Consideration Of The Entire Stipulated Record, The Court Concludes That The Government’s Uncontroverted Evidence Proves Beyond A Reasonable Doubt That Both Defendants, Peter J. Gianaris And Nicholas J. Gianaris, Are Guilty As Charged By Count II Of The Indictment Of Violating 18 U.S.C. § 1955. As noted above, the parties submitted this case for trial by the Court on a stipulated record. That record contains the Government’s evidence with regard to Count II of the indictment returned by the Grand Jury on December 21, 1976. Count II, which is quoted above, charges the defendants with violating 18 U.S.C. § 1955. Section 1955 of Title 18 requires the Government to prove each of the following four elements beyond a reasonable doubt: First, the Government must prove that the defendants conducted, financed, managed, supervised, directed, or owned all or part of a gambling operation; Second, the Government must prove that said gambling operation was conducted in violation of the law of the state or the political subdivision in" }, { "docid": "23401845", "title": "", "text": "F.2d at 903 (emphasis in original). See Martino, 648 F.2d at 383; Bright, 630 F.2d at 834. . One of those counts was severed after the start of trial. . Even apart from the above discussion, under the Federal Rules of Criminal Procedure, the alleged citation of the wrong subpart of the Texas bribery statute in this case would not require reversal of the conviction. Fed.R. Crim.P. 7(c)(3) provides as follows: Harmless Error. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. It is the rule in this Circuit that where “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 where “the defendant is protected against another prosecution for the same offense,” the indictment is not insufficient. United States v. Weliiver, 601 F.2d 203, 207 (5th Cir. 1979). That an indictment contains a miscitation of a statute is not grounds for dismissing the indictment when the defendant is not misled or prejudiced thereby. United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 464-65, 85 L.Ed. 788 (1941); United States v. Garner, 529 F.2d 962, 966 (6th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2630, 49 L.Ed.2d 376 (1976) & 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed.2d 124 (1976). Here, the facts alleged in the indictment clearly charged Welch with a violation of the Texas bribery statute; Welch was not misled or prejudiced by any possible miscitation of the statute — indeed, he does not even contend that he was either prejudiced or misled by the possible miscitation of the statute. The indictment was proper since it “put the defendants on notice of the offenses charged, advised them of the facts giving rise to those offenses, and furnished an adequate foundation for a plea of double jeopardy in the event of a future prosecution of the defendant for the same conduct.” United States" }, { "docid": "7317383", "title": "", "text": "to enable him to prepare his defense (the notice function), and to enable him to plead double jeopardy against a second prosecution (the double jeopardy function). See United States v. Anderson, 532 F.2d 1218, 1227 (9th Cir.), cert. denied 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107 (1976). See also. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). To these ends, Rule 7(c)(1), Federal Rules of Criminal Procedure, provides that an indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged,” and that it shall “state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.” While correct citation to the relevant statute is always desirable, both the Federal Rules and the cases interpreting them make it clear that an error or omission is not necessarily fatal. Rule 7(c)(3), Federal Rules of Criminal Procedure, provides that “error in the citation or its omission shall not be ground for dismissal of the indictment ... or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” (Emphasis added). In United States v. Clark, 416 F.2d 63 (9th Cir. 1969), a Ninth Circuit decision relying on Rule 7(c)(3), this Court upheld the district court’s refusal to dismiss an indictment where appellant, who was accused of submitting a false travel voucher to the federal government, had been charged under 18 U.S.C. § 287 instead of 18 U.S.C. § 1001. In so doing, the Court stated: The statutory citation is not, however, regarded as part of the indictment.... We read Rule 7(c) to permit the citation of a statute on an indictment to be amended where, as here, the facts alleged will support such a change. Id. at 64. We have not been referred to a case in which a Travel Act indictment was attacked for failure to cite the statute comprising the predicate “unlawful activity.” The cases that do discuss § 1952 make it" }, { "docid": "3847937", "title": "", "text": "Kniess v. United States, 9 Cir., 1969, 413 F.2d 752, 759. It was not necessary to recite that the assault was “without just cause or excuse.” If there was such cause or excuse, the defendant could show it; the government did not have the burden of pleading or proving its absence. By a rule of long standing, “an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and * * * it is incumbent on one who relies on such an exception to set it up and establish it.” McKelvey v. United States, 1922, 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301. See also United States v. Rowlette, 7 Cir., 1968, 397 F.2d 475, 479; United States v. W. J. Dillner Transfer Co., 3 Cir., 1963, 315 F.2d 107, 109, cert. denied, 1963, 373 U.S. 951, 83 S.Ct. 1681, 10 L.Ed.2d 706; United States v. Hansen, 9 Cir., 1958, 264 F.2d 540, 543. The indictment does not conform exactly to the language of the applicable statute, but we are admonished by Rule 7(c), F.R.Crim.P. that “[e]rror in the citation [of the statute] or its omission shall not be ground for dismissal of the indictment * * * or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice,” and by Rule 52(a) that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Here, no contention is made that Hockenberry was misled to his prejudice, or that the defects or irregularities in the indictment affected substantial rights. The record would not support such a contention if it were made. The only claim is that the court lacked jurisdiction. That is plainly wrong. However, Hockenberry was sentenced to ten years, the maximum under the California statute. The maximum sentence under 18 U.S.C. § 113(c) is five years. Thus the indictment does" }, { "docid": "3847938", "title": "", "text": "1681, 10 L.Ed.2d 706; United States v. Hansen, 9 Cir., 1958, 264 F.2d 540, 543. The indictment does not conform exactly to the language of the applicable statute, but we are admonished by Rule 7(c), F.R.Crim.P. that “[e]rror in the citation [of the statute] or its omission shall not be ground for dismissal of the indictment * * * or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice,” and by Rule 52(a) that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Here, no contention is made that Hockenberry was misled to his prejudice, or that the defects or irregularities in the indictment affected substantial rights. The record would not support such a contention if it were made. The only claim is that the court lacked jurisdiction. That is plainly wrong. However, Hockenberry was sentenced to ten years, the maximum under the California statute. The maximum sentence under 18 U.S.C. § 113(c) is five years. Thus the indictment does not support the sentence imposed. The case must be remanded for a reduction of the sentence. See Kniess v. United States, supra; Dunaway v. United States, 10 Cir., 1948, 170 F.2d 11, 13. 2. Comment by the judge. Hockenberry was seen by a guard to strike a fellow inmate in the back at about 7:00 o’clock in the morning. The blow caused a wound. About half an hour later, another guard found a knife hidden beneath a cabinet in a latrine. The cabinet and sink were covered with bloodstains. The knife bore Hockenberry’s fingerprint. At about 8:00 o’clock Hockenberry appeared at the prison infirmary for treatment of a wound on his right hand. The doctor asked how he got the wound. The reply was “Quit fucking with me.” On cross-examination by defense counsel the doctor said that Hockenberry did not say that he had cut himself with a razor blade. The cross-examination then continued: “Q. Do your records reflect that? A. Yes, there is a typed up accident report which says or which quotes inmate" }, { "docid": "20543139", "title": "", "text": "privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.” . “Nature and Contents. The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a ’single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” . “Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” . See also, Ledbetter v. United States, 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162 (1898) ; Berg v. United States, 176 F.2d 122 (9th Cir. 1949) ; Thompson v. United States, 283 F. 895 (3rd Cir. 1922). . Both Youngblood and Cargill, supra, circumscribe that general rule with the following exception: the government, upon a showing that disclosure of particular material would jeopardize national security or should be denied for other reasons may seek a protective order from the trial court in order to prevent disclosure to the defendant of that particular portion of the grand jury material. If the government seeks such a protective order, the court would conduct an in camera examination, and any material excised would be sealed in an envelope to await argument on appeal. See" }, { "docid": "11487302", "title": "", "text": "cf. Ferrari v. United States, 244 F.2d 132, 138-40 (9th Cir.), cert. denied, 355 U.S. 873, 78 S.Ct. 125, 2 L.Ed.2d 78 (1957) (burden of proof is on defendant to show prejudice resulting from newspaper articles, quoting United States v. Carruthers, 152 F.2d 512 (7th Cir.), cert. denied, 327 U.S. 787, 66 S.Ct. 805, 90 L. Ed. 10-14 (1945)). II. Appellant contends that the District Court was without jurisdiction to sentence him because the Missouri statutes under which he was indicted, V.A. M. S. §§ 560.135 and 556.170 (1953), do not define criminal conduct and, more significantly, that he could not be punished under the Missouri statutes because the conduct for which he was convicted is proscribed by a federal statute, thus making the Assimilative Crimes Act inapplicable. 18 U.S.C. § 13.® The government’s answer to these contentions is (1) that V.A.M.S. § 560.135 does in fact define criminal conduct, and in any event defendant was on notice of the nature of the charge and (2) that robbery in the first degree by means of a dangerous and deadly weapon under Missouri law is a different offense from the conduct prohibited by 18 U.S.C. § 2111. V.A.M.S. § 560.135 provides: Robbery by means of dangerous and deadly weapons — penalty Every person convicted of robbery in the first degree by means of a dangerous and deadly weapon shall suffer death, or be punished by imprisonment in the penitentiary for not less than five years, and every person convicted of robbery in the first degree by any other means shall be punished by imprisonment in the penitentiary for not less than five years; every person convicted of robbery in the second degree shall be punished by imprisonment in the penitentiary not exceeding five nor less than three years; every person convicted of robbery in the third degree shall be punished by imprisonment in the penitentiary not exceeding five years. V.A.M.S. § 560.120 defines first degree robbery: Robbery in first degree Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and" }, { "docid": "7609382", "title": "", "text": "L.Ed.2d 240 (1962); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). The government’s theory of guilt under the two contradictory statutes would of course necessarily be completely dissimilar. No one can say whether the Grand Jury under the facts present would have indicted the appellant for violation of Title 18, U.S.C. Section 661. All we know is that the Grand Jury did not indict Beard under this section. We cannot indulge in speculation as to this point. Rather, the conviction based upon such a shaky foundation, resting upon such uncertainty, must be reversed. The cases cited by appellee, supra, are applicable where only a technical or typographical error in the indictment is involved, where the statute involved is incorrectly set out, or the like. They are of no help here, where after the deficiencies in the government case were revealed at trial, a statute totally different and unrelated to Title 18, U.S.C. Section 13, was brought forth and relied upon as supporting conviction. The appellee also seeks to apply Criminal Rule 7(c)’s admonition that “Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” This was not a simple error in citation. The applicable rule we think is Criminal Rule 7(e). Rule 7(e). F.R.Crim.P., allows the court to permit informations — not indictments — to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. Observe that only informations may be amended and then only if no additional or different offense is charged. The reason indictments may not be amended is clear. This would substitute the prosecutor’s judgment for that of the constitutional body, the Grand Jury, in framing the charge against a defendant. This is the fatal flaw in the proceedings below. Ex Parte Bain, supra;" }, { "docid": "23592083", "title": "", "text": "15 U.S.C. § 78ff. S-1 Registration Statements, however, are required under the Securities Act of 1933 (“1933 Act”), 15 U.S.C. §§ 77a-77bbbb, not the 1934 Act. See Section 6, 1933 Act, 15 U.S.C. § 77f; see also FORM S-l Registration Statement Under the Securities Act of 1933, available at http://www.sec. gov/about/forms/forms-l.pdf (“This Form shall be used for the registration under the Securities Act of 1933.... ”). Thus, Berger argues that the government did not prove an essential element of Section 32(a) — that he made a materially false statement on an application, report, or document required under the 1934 Act — and accordingly, that his conviction under Count 34 must be reversed. We begin by noting that the government could have properly charged Berger with making a materially false statement on an S-1 Registration Statement under Section 24 of the 1933 Act, 15 U.S.C. § 77x. Section 24 of the 1933 Act criminalizes the filing of materially false statements made on a registration statement filed under the 1933 Act. See 515 U.S.C. § 77x. Thus, both Section 24 of the 1933 Act and Section 32(a) of the 1934 Act criminalize the filing of material false statements on documents required under their respective acts. Berger does not contest that Section 24 of the 1933 Act criminalizes the conduct alleged in Count 34. Accordingly, the error alleged by Berger here is one of improper statutory citation, rather than one of substantive error in the indictment. Such an error is not a proper basis for reversal. The Federal Rules of Criminal Procedure counsel that “[u]nless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citation’s omission is a ground to dismiss the indictment or information or to reverse a conviction.” Fed.R.Crim.P. 7(c)(3). Here, the language of the indictment clearly constitutes a satisfactory enumeration of the elements of Section 24 of the 1933 Act. Accordingly, Berger was not “misled to his prejudice,” nor did “defects or irregularities in the indictment affect[his] substantial rights.” Hockenberry v. United States, 422 F.2d 171, 174 (9th Cir.1970). We hold that Count 34" }, { "docid": "2297031", "title": "", "text": "that there was no scheme to defraud [Heileman] in which Quintanilla participated.” By removing any reference to such a scheme in the redacted ITSP counts, the government improperly altered the elements of the charged offense. In so doing, Quintanilla claims, the government deprived him of his constitutional right to notice of the charges against him so that he could prepare a defense. The government responds that a scheme to defraud is not an element of the ITSP crime with which Quintanilla was charged. The ITSP counts in the superseding indictment included a reference to the scheme to defraud alleged in Count Four simply to provide detail as to how money was taken by fraud from Heileman. Thus, according to the government, the deletion of any reference to Count Four did not alter the intent element required to violate the ITSP statute, but only changed the form of the indictment in response to the district court’s granting of Quintanilla’s motion for acquittal. •We begin with some brief general principles. This court has long recognized that Fed.R.Crim.P. 52(a), which provides that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded,” applies fully when judging the sufficiency of an indictment. United States v. Roman, 728 F.2d 846, 849-50 (7th Cir.), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984). This is consistent with the view expressed by the Supreme Court in Russell: “This Court has, in recent years, upheld many convictions in the face of questions concerning the sufficiency of the charging papers. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. [Citing cases.] This has been a salutary development in the criminal law.” 369 U.S. at 763, 82 S.Ct. at 1046 (quoting Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041 (1959)). We do not think the amendments made by the government altered the intent element of the ITSP statute, 18 U.S.C. § 2314. “To support a conviction under section 2314, an indictment must allege: ‘(1) interstate transportation of" }, { "docid": "16462940", "title": "", "text": "if it is true that under many circumstances a person who kills in the course of a robbery is motivated to do so for pecuniary reasons, that is not necessarily so ... ”)• Like the other courts to have reviewed this issue, we find nothing in the statute or legislative history to suggest that Congress intended such a result. We agree with the government that an indictment need not precisely track the language of the statute and is sufficient when it sets forth the facts that constitute the offense. There is nothing in this indictment, however, from which we can conclude that the grand jury in this case considered, and found, the facts that would support the pecuniary gain aggravator. See Olson, 262 F.3d at 799-800 (vacating conviction under 18 U.S.C. § 2113(a) where indictment did not sufficiently allege that the bank robbery was accomplished “by force and violence” as required by statute, and citation of the statute was not in itself sufficient to determine whether the grand jury considered the missing element in charging the defendant). Because Allen’s indictment cannot be reasonably construed to charge a statutory aggravating factor, as required for imposition of the death penalty, it is constitutionally deficient to charge a capital offense. B. Harmless Error The government argues that Allen’s death sentence should be affirmed because any error from the indictment omission was harmless. See Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity, or variance which does not affect substantial rights must be disregarded.”); Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (“[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.”). The government contends that the failure to include a statutory aggravator did not affect Allen’s substantial rights because: (1) Allen had notice prior to trial that the government intended to seek the death penalty based on certain aggravating factors-thus Allen’s trial strategy was not hindered in any way by the error; and (2) given the lower evidentiary burden" }, { "docid": "11487310", "title": "", "text": "denied, 403 U.S. 907, 91 S.Ct. 2214, 29 L.Ed.2d 684 (1971). See generally Annot. 2 L.Ed.2d 1686 (1958). Where the government wrongfully secures a conviction under a state statute pursuant to the Assimilative Crimes Act, rather than under the relevant federal statute, the appropriate remedy is not a reversal of the conviction, but rather a vacating of the sentence and a remand to the district court for resentencing. United States v. Olvera, 488 F.2d 607 (5th Cir. 1973), cert. denied, 416 U.S. 917, 94 S.Ct. 1625, 40 L.Ed.2d 119 (1974); United States v. Patmore, supra ; Hockenberry v. United States, 422 F.2d 171 (9th Cir. 1970). Accordingly, while we affirm the judgment of conviction, appellant’s sentence under V.A.M.S. § 560.135 and § 556.170 is ordered vacated. The case is remand ed to the District Court for resentencing under 18 U.S.C. § 2111. . 18 U.S.C. § 13 provides: Laws of states adopted for areas within federal jurisdiction Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment. [Emphasis added] 18 U.S.C. § 7 provides in relevant part: Special maritime and territorial jurisdiction of the United States defined The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes: (3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. Word was sentenced to life imprisonment by" }, { "docid": "21583372", "title": "", "text": "the defendant to his prejudice,’ and by Rule 52(a) that ‘[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.’ Here, no contention is made that Hockenberry was misled to his prejudice, or that the defects or irregularities in the indictment affected substantial rights. The record would not support such a contention if it were made. Similarly, the Eighth Circuit in United States v. Word, 519 F.2d 612 (8th Cir. 1975), cert. denied, 423 U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265 (1975), found that the Government had erroneously secured a conviction under a Missouri robbery statute and the Assimilative Crimes Act, 18 U.S.C. § 13, rather than under the relevant Federal robbery statute, 18 U.S.C. § 2111. Observing that the defendant “was clearly put on notice that he was being charged with armed robbery,” the court held that the flaw in the indictment was not fatal and that reversal was not required. The applicable rule was said to be the following: Where the government wrongfully secures a conviction under a state statute pursuant to the Assimilative Crimes Act, rather than under the relevant federal statute, the appropriate remedy is not a reversal of the conviction, but rather a vacating of the sentence and a remand to the district court for resentencing. More recently, the Tenth Circuit reached the same conclusion. In United States v. Walker, 557 F.2d 741 (10th Cir. 1977), the court found that Walker had improperly been convicted in the lower court of violat ing a Colorado theft statute as pleaded under the Assimilative Crimes Act, 18 U.S.C. § 13. On appeal, the Government conceded that the criminal act charged in the indictment was punishable under the Federal theft statute, 18 U.S.C. § 661. Declining the opportunity to dismiss, the court stated: It is well settled that an incorrect statutory reference in the indictment does not require reversal where all of the essential elements of the correct statute are otherwise covered, but that any sentence imposed in excess of that allowed under the correct statute must be vacated and the case remanded" }, { "docid": "22624821", "title": "", "text": "198. This legislation has now been repealed, but its substance is preserved in the more generalized provision of Rule 52 (a) of the Federal Rules of Criminal Procedure, which states that “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” There was apparently no other legislation dealing with the subject of indictments generally until the promulgation of Rule 7 (c), Fed. Rules Crim. Proc., in 1946. The Rule provides: “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” As we have elsewhere noted, “This Court has, in recent years, upheld many convictions in the face of questions concerning the sufficiency of the charging papers. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. [Citing cases.] This has been a salutary development in the criminal law.” Smith v. United States, 360 U. S. 1, 9. “But,” as the Smith opinion went on to point out, “the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules.” Ibid. Resolution of the issue presented in the cases before us thus ultimately depends upon" }, { "docid": "14183822", "title": "", "text": "U.S.C. § 13 in view of the fact that the offense for which he was indicted is cognizable under the Federal Robbery Statute, 18 U.S.C. § 2111. The government has conceded, both in this court and in the district court, that if the Tennessee and Federal Robbery Statutes proscribe the same act, the Assimilative Crimes Act could not have application because petitioner should then have been charged under the federal statute. The Supreme Court has made that clear: “. . . Congress has recognized a slowly increasing number of federal crimes in the field of major offenses by enacting for the [Federal] enclaves specific criminal statutes which have defined those crimes and, to that extent have excluded the state laws from that field.” (Emphasis supplied.) United States v. Sharpnack, 355 U.S. 286, 289, 78 S.Ct. 291, 293, 2 L.Ed.2d 282 (1957). The Court had earlier said, “The Assimilative Crimes Act has a natural place to fill through its supplementation of the Federal Criminal Code, without giving it the added effect of modifying or repealing existing provisions of the Federal Code.” Williams v. United States, 327 U.S. 711, 718, 66 S.Ct. 778, 782, 90 L.Ed. 962 (1946). The issue presented in this connection is whether the crime with which petitioner was charged is specifically prohibited by the only federal statute which could cover the crime charged, namely, 18 U.S.C. § 2111. The district court addressed itself squarely to the issue, but concluded that because “Tennessee’s robbery statute addresses itself to both ‘simple’ and ‘armed’ robbery and provides enhanced punishment for the latter”, while Section 2111 makes no such distinction, Congress has not made penal “ ‘precise acts upon which the conviction depends . . . ’ and it was therefore not improper for the Government to proceed under the Tennessee Armed Robbery Statute.” We are forced to the opposite conclusion. Clearly, the precise acts upon which petitioner was indicted are punishable under Section 2111. That statute provides that anyone who takes anything of value from another within a federal enclave by force and violence, or by intimidation, shall be subject to" } ]

[ { "docid": "3258924", "title": "", "text": "Justice Black, made no reference to competition between the parent and subsidiary and concluded: But since respondents Midas and International availed themselves of the privilege of doing, business through separate corporations, the fact of common ownership could not save them from any of the obligations that the law imposes on separate entities. 392 U.S. at 141-142, 88 S.Ct., at 1986. Similarly here, Bronner chose not to employ one of its own men to solicit business in Illinois, Indiana and Wisconsin, but, instead, hired Weiner. Under Perma Life, since Bronner and Weiner are separate legal entities, their agreement to violate the antitrust laws would be illegal. Consequently, we find that the district court’s reliance upon Nelson Radio & Supply Co. v. Motorola, 200 F.2d 911 (5th Cir. 1952), was erroneous. That decision does not preclude a conspiracy or combination between a corporation and any agent. The guiding principle is the requirement that there be more than one independent business entity involved in the combination or conspiracy. Thus in Nelson Radio, the court properly held that the corporation could not conspire with its managing officers and agents who maintained no business identity separate from the corporation itself. On the other hand, where there are distinct entities, the existence of an “agency” relationship between them does not foreclose a violation of Section 1 of the Act. Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968); United States v. Parke, Davis & Co., 362 U.S.. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960); see also Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968); Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951); Joseph E. Seagram and Sons, Inc. v. Hawaiian Oke and Liquors, Ltd., 416 F.2d 71 (9th Cir. Sept. 8, 1969). We conclude that a combination under the Sherman Act existed between Bronner and Weiner, and that the district court should not have granted summary judgment for Weiner. Further, the district court improperly characterized Weiner’s negotiations with wholesalers" } ]

[ { "docid": "953761", "title": "", "text": "the acts of the agents are the acts of the corporation. Nelson Radio and Supply Corporation v. Motorola, Inc., 200 F.2d 911 (5th Cir. 1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953); approved in dicta in Goldlawr, Inc. v. Shubert, 276 F.2d 614 (3rd Cir. 1960). In Johnston v. Baker, 445 F.2d 424 (3rd Cir. 1974), in ruling on an action for conspiracy to harass a plaintiff in the conduct of his business, the Third Circuit Court of Appeals held that a corporation can conspire with its agents if the agents are acting for their own personal interests and one of the alleged conspirators is not an employee or agent of the corporation. There, the court declined to pass on the continued viability of Nelson Radio. Nothing in the present complaint suggests that defendants were at any time acting outside their roles as officers and agents of the corporation or that they were acting for personal motives. However, this Court need not base its dismissal of the claim against the corporate officers on an agency theory. The fact that defendants are the president and upper echelon executives in the corporation confers on them the privilege of interfering with plaintiff’s employment relationship, Menefee v. Columbia Broadcasting System, Inc., 458 Pa. 46, 329 A.2d 216 (1974). See also §§ 769, 772, Restatement of Torts; Geib v. Alan Wood Steel, supra. As executives in the corporation, the individual defendants were privileged to advise ARA Services, Inc. They had the necessary interest in ARA to interfere with plaintiff’s employment relationship, provided they did not do so solely for their personal purposes. As stated above, nothing in the complaint indicates that defendants were acting out of ill will or for some other purpose unconnected to their interest in ARA. Plaintiff also argues that because of a change in the composition of the Pennsylvania Supreme Court subsequent to the Geary decision, this court should hesitate to dispose of this case until it can ascertain the present state law. “[T]he highest court of the state is the final arbiter of what is" }, { "docid": "681055", "title": "", "text": "1974); Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952). Simply joining corporate officers as defendants in their individual capacities is not enough to make them persons separate from the corporation in legal contemplation. The plaintiff must also allege that they acted other than in the normal course of their corporate duties. See Webb v. Culberson, Heller & Norton, Inc., 357 F.Supp. 923, 924 (N.D.Miss. 1973); cf. Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952). In this ease no such allegation has been made; “[i]t is not alleged that the individual defendants committed any act of a personal nature except in connection with the corporate affairs.” Webb v. Culberson, Heller & Norton, Inc., 357 F.Supp. 923, 924 (N. D.Miss.1973). The only realistic target of Cole’s complaint is the University, which allegedly discriminated against him as an employee. The plaintiff argues, however, that Dombrowski contemplates a broader exception to the Nelson Radio rule than the one set out above, for it states: “We do not suggest that an agent’s action within the scope of his authority will always avoid a conspiracy finding. Agents of the Klan certainly could not carry out acts of violence with impunity simply because they were acting under orders from the Grand Dragon. . . . ” 459 F.2d at 196. Read most broadly, Dombrowski may say that the Nelson Radio rule does not apply whenever racial discrimination is alleged; more narrowly, as the defendants would read Dombrowski, it may carve out an exception where violent acts are alleged. Neither of these interpretations is satisfactory, however. The first reading is foreclosed by Dombrowski itself, which involved allegations of racial discrimination; the second reading is based on no principled rationale. Perhaps the best explanation for this dicta in Dombrowski is that the law will not let those who would otherwise fall afoul of § 1985(3) avoid its effects by forming a corporation. In other words, conspirators may not create a principal for whom they are agents in order to make their acts all the acts" }, { "docid": "3991158", "title": "", "text": "be treated as individuals for antitrust purposes. We see no reason to treat professional corporations in any different manner than any other corporation. Group practice by professional corporations is a common method of delivering health care. Such corporations are lawfully organized. The professional corporation has the same needs as any corporation to have its officers, members and employees engage in concerted activity. As with every corporation, it cannot exist unless its shareholder members can agree among themselves with respect to all aspects of its operation. It is recognition of this need which forms the basis for the rule that since a corporation cannot combine or conspire with itself, the acts of a corporation acting through its directors, officers, and employees are not generally subject to condemnation under section 1. Greenville Publishing Co., 496 F.2d at 399. See, e.g., Tamaron Distrib. Corp. v. Weiner, 418 F.2d 137, 138-39 (7th Cir.1969); Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203, 205-06 (5th Cir.1969); Chapman v. Rudd Paint & Varnish Co., 409 F.2d 635, 642-43 (9th Cir.1969); Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953); Allen Organ Co. v. North Am. Rockwell Corp., 363 F.Supp. 1117, 1128-29 (E.D.Pa. 1973). Appellants raise the specter of doctors incorporating for the purpose of avoiding the antitrust laws. However, the agreement to form a corporation for that purpose would be subject to the scrutiny of the antitrust laws. And the use of a professional corporation for that purpose would run afoul of the attempt to monopolize prohibition of section 2. Moreover, there is no claim that the Burns Clinic was organized for that purpose. Burns Clinic had been in existence, first as a partnership and later as a professional corporation, for many years. It owns its own building in which all the members practice. It is not a mere shell. (2) NMH Pediatrician Rule: The second anti-competitive practice of the defendants alleged to be the result of an illegal combination concerns the existence of a “pediatrician rule” at" }, { "docid": "681048", "title": "", "text": "1974). Insofar as the motion to dismiss is based on a lack of exhaustion, it must therefore be denied. The second ground of the defendants’ motion to dismiss is that count two of the complaint, which alleges a conspiracy to deny the alleged class their civil rights in violation of 42 U.S.C. § 1985(3) (1970), fails to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). This second groúnd is based on two separate arguments, only one of which need be considered. The defendants’ argument is that the named plaintiff has not alleged the conspiracy between “two or more persons” prohibited by § 1985(3). The argument relies on the doctrine that a corporation cannot conspire with its employees insofar as they are acting for the corporation. The leading case, Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952), discusses this doctrine cogently in the context of an antitrust case: “It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation. Here it is alleged that the conspiracy existed between the defendant corporation, its president, Calvin, its sales manager, Kelly, and its officers, employees, representatives and agents who have been actively engaged in the management, direction and control of the affairs and business of defendant. This is certainly a unique group of conspirators. The officers, agents and employees are not named as defendants and no explanation is given of their non-joinder. Nor is it alleged affirmatively, expressly, or otherwise, that these officers, agents, and employees were actuated by any motives personal to themselveis. Obviously, they were acting only for the defendant corporation. . . . [I]t appears plain to us that the conspiracy upon which plaintiff relies consists simply in the absurd assertion that the defendant, through its officers and agents, conspired with itself to restrain its trade in its own products. Surely" }, { "docid": "21930424", "title": "", "text": "are not separate legal entities for the purpose of forming a conspiracy under the Sherman Act: “It is well established that a corporation cannot conspire with its officers, employees, and agents in restraint of trade within the meaning of the Sherman Act.” Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203 [5th Cir. 1969]. “It takes two persons or entities to constitute a conspiracy and a corporation cannot conspire with itself. Since the officers, employees and agents of the corporation are considered a part of the corporation and their acts are the acts of the corporation, there can be no intracorporate conspiracy.” Kendall Elevator Co. v. L B C & W Assoc. of South Carolina, Inc., 350 F.Supp. 75, 78 [D.S.C.1972], See also Goldlawr, Inc. v. Schubert, 276 F.2d 614 [3rd Cir. 1960], Johnston y. Baker, 445 F.2d 424 [3rd Cir. 1971], and Allen Organ Co. v. North American Rockwell Corp., 363 F.Supp. 1117, 1128-1129 [E.D.Pa.1973]. “Surely discussions among those engaged in the management, direction and control of a corporation concerning the price at which the corporation will sell its goods, the quantity it will produce, the type of customers or market to be served, or the quality of goods to be produced do not result in the corporation being engaged in a conspiracy in unlawful restraint of trade under the Sherman Act. Plaintiff can come within the meaning of Section 1 of the Act only by claiming the existence of a conspiracy, but no conspiracy could possibly exist under the facts disclosed.” Nelson Radio & Supply Co. Inc. v. Motorola, Inc., 200 F.2d 911, 914 [5th Cir. 1952], The basic documents which control the relationship between plaintiff and defendant are entitled “Commission Manager Agreement”. There were two of these in effect during the period covered by the complaint and they áre substantially similar. The changes in the provisions in the second contract shifted responsibility for certain items of operating costs, but otherwise the differences are not material to the determination of the question presented. The printed contract recites that: “Employment. Boron hereby employs Manager to operate Boron’s Gasoline" }, { "docid": "23484379", "title": "", "text": "to AMC; Lucius Burch and Charles Newman of the Memphis law firm of Burch, Porter & Johnson, Memphis counsel engaged as local counsel to represent AMC; and, finally, James M. Maniré, counsel who was engaged by AMC to represent Doherty in the latter’s own defense in the criminal proceedings. The difficulty is that, with the exception of Mr. Manire, all of the persons named were either employees or agents of AMC. AMC urges the general rule in civil conspiracy that a corporation cannot conspire with its agents or employees. See generally Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911 (5th Cir.1952), cert, denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953). The rationale of the Fifth Circuit in Nelson Radio has generally been accepted: It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation. 200 F.2d at 914. While Nelson Radio dealt with an alleged conspiracy under section one of the Sherman Act, 15 U.S.C. § 1 (1982), the same rule has been consistently applied in allegations of conspiracy under the Civil Rights Act. Thus, in Herrmann v. Moore, 576 F.2d 453 (2d Cir.), cert. denied, 439 U.S. 1003, 99 S.Ct. 613, 58 L.Ed.2d 679 (1978), the plaintiff had alleged a conspiracy between an educational corporation, the Brooklyn Law School, and its trustees and employees. In denying the plaintiff’s claim under section 1985(2), the court repeated the “familiar doctrine” that “there is no conspiracy if the conspiratorial conduct challenged is essentially a single act by a single corporation acting exclusively through its own directors, officers, and employees, each acting within the scope of his employment.” 576 F.2d at 459. The same rule has been applied frequently throughout the country. Girard v. 94th Street & Fifth Avenue Corp., 530 F.2d 66, 70 (2d Cir.), cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798" }, { "docid": "23253195", "title": "", "text": "a contract under Ohio Rev.Code § 3319.11 does not impede plaintiff’s right to “make or enforce” contracts and is not cognizable under § 1981. III. Plaintiff next argues that the district court erred in granting defendants’ motion for summary judgment on the 1985(3) claim. To sustain a cause of action under 42 U.S.C. § 1985(3), a plaintiff must prove the existence of a conspiracy among “two or more persons.” Plaintiff alleges that district superintendent Schuck, executive director Planee, and vocational supervisor Romes conspired together to deprive her of her constitutional rights. Defendants argue that the “intra-corporate conspiracy” theory bars this claim. The theory states: It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation. Nelson Radio & Supply Co., Inc. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953). We agree with defendants. This court has adopted the general rule in civil conspiracy cases that a corporation cannot conspire with its own agents or employees. Doherty v. American Motors Corp., 728 F.2d 334, 339 (6th Cir.1984). Although the doctrine was first developed in the context of antitrust litigation, this court in Doherty stated, “[TJhe same rule has been consistently applied in allegations of conspiracy under the Civil Rights Act.” Id. This court in Doherty agreed with a second circuit decision, Herrmann v. Moore, 576 F.2d 453 (2nd Cir.1978), which applied the “intra-corporate conspiracy” doctrine to bar the plaintiff’s § 1985(2) claim. In Herrmann, the plaintiff had alleged a con spiracy between an educational corporation, the Brooklyn Law School, and its trustees and employees. In the present case, plaintiff is alleging a conspiracy between a school district superintendent, the executive director of the district, and a school administrator, all of whom are employees or agents of the Board. Since all of the defendants are members of the same" }, { "docid": "11650560", "title": "", "text": "mileage traveled. . . .” Thus, to the extent Count III is intended to allege a conspiracy to violate Section 1988, it is duplicative of Count IV and is, accordingly, superfluous. COUNT IV 15 U.S.C. § 1986 as noted above prohibits conspiracies to violate certain sections of the odometer statute. Defendants argue that an agent cannot, as a matter of law, conspire with the corporation which is his principal. They rely on Nelson Radio & Supply Company v. Motorola, 200 F.2d 911 (5th Cir. 1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953), in which a conspiracy in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, was alleged to exist among a corporation and its officers, employees, representatives and agents who were actively engaged in the management, direction and control of the affairs and business of the corporation. In Nelson, the court theorized that the act of the agent was the act of the corporation and, therefore, that a corporation could no more conspire with its agent than it could conspire with itself. This reasoning was subsequently approved by the Third Circuit Court of Appeals. See Goldlawr, Inc. v. Shubert, 276 F.2d 614 (3rd Cir. 1960) (dictum). Plaintiffs insist that Nelson and its progeny are limited to cases where the agent is acting solely on behalf of the principal. They argue that their allegation that Watson was acting both as an agent of Rollins and “in his individual capacity in expectation of a commission . . . ” makes this a different case from Nelson. The Court does not agree. It is true that in Nelson, the court indicates that its rule would not apply where the agents were “actuated by any motives personal to themselves” or were not acting in their “normal capacities”. 200 F.2d at 914. It is also true that, in Johnston v. Baker, 445 F.2d 424 (1971), the Third Circuit suggested comparable limitations on the Nelson rationale. The Johnston court suggested, for example, that Nelson would not apply to a case where some one or more of the" }, { "docid": "22464963", "title": "", "text": "S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946). Other courts of appeals have previously determined that § 1 does not reach a putative “conspiracy” between a corporation and its employees. This simply is not regarded as the requisite “concerted action.” The leading decision is Nelson Radio & Supply Co., Inc. v. Motorola, Inc., 200 F.2d 911 (5th Cir. 1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953). Judge Borah wrote for the court in Nelson Radio, Surely discussions among those engaged in the management, direction and control of a corporation concerning the price at which the corporation will sell its goods, the quantity it will produce, the type of customers or market to be served, or the quality of goods to be produced do not result in the corporation being engaged in a conspiracy in unlawful restraint of trade under the Sherman Act.... The defendant is a corporate person and as such it can act only through its officers and representatives. It has the right as a single manufacturer to select its customers and to refuse to sell its goods to anyone for any or no reason whatsoever. It does not violate the Act when it exercises its rights through its officers and agents, which is the only medium through which it can possibly act. 200 F.2d at 914. The Nelson Radio rule arguably has not heretofore been established in this circuit. Compare Johnston v. Baker, 445 F.2d 424, 427 (3d Cir. 1971), with Goldlawr, Inc. v. Shubert, 276 F.2d 614, 617 (3d Cir. 1960). We now adopt the reasoning of Nelson Radio and hold that a corporation and its employees cannot be treated as separate entities to establish a conspiracy under § 1. This precludes any suggestion that FPB conspired with its officers, appellees Bunting and Pemberton, or that Bunting and Pemberton conspired between themselves or with other FPB employees. B. We turn now to the other appellee banks. We note preliminarily that witnesses representing each of the banks testified that they made their decisions independently, without discussing appellants’ applications with officials of any other banking" }, { "docid": "19790875", "title": "", "text": "to the motive or intent behind Becker’s decision, there is no claim that it was made for anything other than corporate gain. Under these circumstances, it is impossible to find that the officials of the Breakstone Division could have caused the defendant to conspire with itself or with them to violate the Sherman Act. In dealing with a similar argument in Nelson Radio & Supply Co., Inc. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953), the Court ruled: “It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can [I]t appears plain to us that the conspiracy upon which plaintiff relies consists simply in the absurd assertion that the defendant, through its officers and agents, conspired with itself to restrain its trade in its own products. Surely discussions among those engaged in the management, direction and control of a corporation concerning the price at which the corporation will sell its goods, the quantity it will produce, the type of customers or market to be served, or the quality of goods to be produced do not result in the corporation being engaged in a conspiracy in unlawful restraint of trade under the Sherman Act .... [N]o conspiracy could possibly exist under the facts disclosed. The Act does not purport to cover a conspiracy which exists merely in the fact that the officers of the single defendant corporation did their day to day jobs in formulating and carrying out its managerial policy. The defendant is a corporate person and as such it can act only through its officers and representatives. It has the right as a single manufacturer to select its customers and to refuse to sell to anyone for any or no reason whatsoever. It does not violate the Act when it exercises its rights through its officers and agents, which is the only medium through which it can possibly act.” The same reasoning applies" }, { "docid": "15661141", "title": "", "text": "conspire with itself. See Dussouy, 660 F.2d at 603 (noting that “the multiplicity of actors necessary to conspiracy” is negated when the agents’ acts are attributed to the corporation and the corporation and its agents are viewed as a single legal actor); Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952) (explaining that “[i]t is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation”). Not surprisingly, the intracorporate conspiracy doctrine first developed in the antitrust context where it seemed particularly logical to conclude that a single corporation could not conspire with itself to restrain trade in the way imagined by Section 1 of the Sherman Antitrust Act. As the former Fifth Circuit explained in Nelson Radio, while a single corporation could act in violation of Section 2 of the Sherman Act — which prohibits attempts to monopolize — it could not alone form a contract, combination, or conspiracy in restraint of trade so as to violate Section 1 of the Act. See Nelson Radio, 200 F.2d at 914 (explaining that Section 1 of the Sherman Act “does not purport to cover a conspiracy which consists merely in the fact that the officers of the single defendant corporation did their day to day jobs in formulating and carrying out its managerial policy”). To hold otherwise would render Section 2 of the Act meaningless. See Hartley, 678 F.2d at 971. In Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.1972), the Seventh Circuit extended the intracorporate conspiracy doctrine to § 1985 claims. The Dombrowski court held that when two executives of the same firm make a decision to discriminate in furtherance of the purpose of the busi ness, that decision cannot be called a conspiracy for purposes of § 1985(3). Id. at 196. See also Hartman v. Board of Trustees, 4 F.3d 465, 469-70 (7th Cir.1993) (holding the" }, { "docid": "22422439", "title": "", "text": "As to HCA Management and MMC, the district court found there could be no conspiracy between a corporation and its employee, relying on Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879 (3rd Cir.1981), cert. denied 454 U.S. 893, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981); Nelson Radio & Supply Co., Inc. v. Motorola, Inc., 200 F.2d 911 (5th Cir.1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953). According to the plaintiff the relationship of the parties is not as simple as the district court views iti The plaintiff contends that while HCAM is a wholly owned subsidiary of HCA, its status as an employee of MMC is more complicated than the usual employer-employee situation. In this case the employee is a separate corporate entity with an entirely separate board of directors, and the employee is in the business of managing hospitals for a profit. As such, St. Joseph’s argues that HCA/HCAM had the independent corporate existence plus the independent interest and motive necessary to support a conspiracy claim under § 1 of the Sherman Act. As the Seventh Circuit pointed out in Tamaron Distributing Corporation v. Weiner, 418 F.2d 137 (7th Cir.1969), Nelson Radio does not preclude a conspiracy or combination between a corporation and any agent. The guiding principle is the requirement that there be more than one independent business entity involved in the combination or conspiracy. Thus in Nelson Radio, the court properly held that the corporation could not conspire with its managing officers and agents who maintained no business identity separate from the corporation itself. On the other hand, where there are distinct entities, the existence of an “agency” relationship between them does not foreclose a violation of Section 1 of the Act. Id. at 139. The courts have repeatedly noted that, while a corporation’s officers and its employees are legally incapable of conspiring among themselves, if the “officers or employees act for their own interests, and outside the interests of the corporation, they are legally capable of conspiring with their employers for purposes of Section 1.” Tunis Brothers Co., Inc. v." }, { "docid": "953760", "title": "", "text": "Since the reasonable implications of Geary do not provide plaintiff with a cause of action for the tort of wrongful discharge as this Court held supra, they also do not provide the basis for a claim of conspiracy to deprive plaintiff of his rightful employment. Plaintiff’s right to his occupation could be based on the contract alleged or on the right to be free from malicious interference with prospective advantage. Under either theory, this action is dismissed against the corporation, ARA Services, Inc., since an employer cannot be said to conspire to induce breach of its own employment contract or terminate its own employment relationship. This count will also be dismissed as against the individual defendants because, according to the inferences of the complaint, they acted as agents of the corporation. The law is not entirely settled, as to whether the officers of the corporation can conspire with each other. The general rule, as developed in this circuit in antitrust cases, is that a corporation cannot conspire with itself anymore than a individual can, and the acts of the agents are the acts of the corporation. Nelson Radio and Supply Corporation v. Motorola, Inc., 200 F.2d 911 (5th Cir. 1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953); approved in dicta in Goldlawr, Inc. v. Shubert, 276 F.2d 614 (3rd Cir. 1960). In Johnston v. Baker, 445 F.2d 424 (3rd Cir. 1974), in ruling on an action for conspiracy to harass a plaintiff in the conduct of his business, the Third Circuit Court of Appeals held that a corporation can conspire with its agents if the agents are acting for their own personal interests and one of the alleged conspirators is not an employee or agent of the corporation. There, the court declined to pass on the continued viability of Nelson Radio. Nothing in the present complaint suggests that defendants were at any time acting outside their roles as officers and agents of the corporation or that they were acting for personal motives. However, this Court need not base its dismissal of the claim against the" }, { "docid": "19790874", "title": "", "text": "the same corporation cannot be considered “independent business entities” and therefore are not capable of entering such a statutory conspiracy. The plaintiffs recognize this as the general rule but insist that this case constitutes an exception to the rule. They argue that the decision by Becker of the Breakstone Division requiring the plaintiffs to discontinue , either the Breakstone or Kraft Division line was not “normal” or in the “day-to-day” or “ordinary” scope of his duties in carrying out his management responsibilities to the corporation. From this they ask the Court to infer that in making the decision Becker was not acting as an agent of the corporation, but rather as an individual. This argument is not buttressed by any factual allegations in either the Complaint or the Pretrial Order. On the contrary, plaintiffs virtually concede in paragraph 22 of the Complaint that the officials of the Breakstone Division, including Becker, were going about the corporate business with a primary purpose of gain for the corporation. While there may be a difference of opinion as to the motive or intent behind Becker’s decision, there is no claim that it was made for anything other than corporate gain. Under these circumstances, it is impossible to find that the officials of the Breakstone Division could have caused the defendant to conspire with itself or with them to violate the Sherman Act. In dealing with a similar argument in Nelson Radio & Supply Co., Inc. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953), the Court ruled: “It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can [I]t appears plain to us that the conspiracy upon which plaintiff relies consists simply in the absurd assertion that the defendant, through its officers and agents, conspired with itself to restrain its trade in its own products. Surely discussions among those engaged in the management, direction and control of a" }, { "docid": "15661140", "title": "", "text": "conspire among themselves. The doctrine is based on the nature of a conspiracy and the legal conception of a corporation. It is by now axiomatic that a conspiracy requires a meeting of the minds between two or more persons to accomplish a common and unlawful plan. See Bivens Gardens Office Bldg., Inc. v. Barnett Banks Inc., 140 F.3d 898, 912 (11th Cir.1998) (explaining that a civil conspiracy ordinarily requires “an agreement between two or more people to achieve an illegal objective, an overt act in furtherance of that illegal objective, and a resulting injury to the plaintiff’). However, under basic agency principles, the acts of a corporation’s agents are considered to be those of a single legal actor. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 603 (5th Cir.1981); see also United States v. Hartley, 678 F.2d 961, 970 (11th Cir.1982). Therefore, just as it is not legally possible for an individual person to conspire with himself, it is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself. See Dussouy, 660 F.2d at 603 (noting that “the multiplicity of actors necessary to conspiracy” is negated when the agents’ acts are attributed to the corporation and the corporation and its agents are viewed as a single legal actor); Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952) (explaining that “[i]t is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation”). Not surprisingly, the intracorporate conspiracy doctrine first developed in the antitrust context where it seemed particularly logical to conclude that a single corporation could not conspire with itself to restrain trade in the way imagined by Section 1 of the Sherman Antitrust Act. As the former Fifth Circuit explained in Nelson Radio, while a single corporation could act in violation of Section 2 of the Sherman" }, { "docid": "16493410", "title": "", "text": "Section 1985 is aimed only at conspiracies among “two or more persons.” Where corporations are concerned, the general rule is that a corporation cannot conspire with its officers, employees, or agents. Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911 (5th Cir. 1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953). The Attorney General advances two reasons why the general rule should not apply to this case. First, he argues that the rule should not extend to a corporation’s outside attorneys. He has identified Sun’s Washington counsel as co-conspirators, although they have not been named as defendants. In Nelson Radio, the Fifth Circuit reasoned that agents and representatives must be considered part of the corporation because a corporation “can act only through its officers and representatives.” Nelson Radio, supra at 914. The same logic would dictate that a corporation cannot conspire with its attorneys in these circumstances. Just as a corporation cannot act except through its agents and officers, it generally cannot participate in litigation except through counsel. See Ashley-Cooper Sales Services v. Brentwood Mfg. Co., 168 F.Supp. 742, 745-46 (D.Md.1958); Annot., 19 A.L.R.3d 1073 (1968). The plaintiff’s second argument for not applying the Nelson Radio rule is based on the recent Third Circuit case of Novotny v. Great American Federal Savings & Loan Ass’n, 584 F.2d 1235 (3d Cir. 1978). In Novotny, the court held that the individual defendants were capable of conspiring to encourage sex discrimination even though they were all officers and directors of the defendant corporation. The Novotny court rejected the argument that the defendants were immune merely because their actions were “taken in the course of their duties” as officers and directors. Id. at 1257. Unlike the situation in the Novotny case, here it is clear that Sun’s officers and attorneys were not simply acting “in the course of their duties” to advance their own prejudices, but were acting solely to advance the interests and goals of the corporation. The Fourth Circuit generally follows the Nelson Radio rule, but has carved out an exception “when the officer has an" }, { "docid": "14060112", "title": "", "text": "States v. Western Union Telegraph Co., D.C., 53 F.Supp. 377 and Federal Broadcasting System v. American Broadcast Co., 2 Cir., 167 F.2d 349. In the latter case the action was against the four large radio chain broadcasting networks. A monopoly was alleged as a result of a conspiracy among the four networks. It is noticed that Judge Hand said, at page 351: “ * * * However, each did this pursuant to the terms of its agreement, and it is clear that if these defendants really acted individually and not jointly they were within their rights. A network is not a common carrier and each therefore had the right in the absence of concerted action to make such contracts for the distribution of its programs as it chose.” It is apparent therefore that the latter ease cited by plaintiff does not support the proposition for which it contends here. In fact, the reverse is true, as there is no allegation whatsoever that defendant acted with any other station but only with its agents, servants and employees. Whatever it did, therefore, was independent and clearly subject to the provisions of the Federal Communications Act. See Nelson Radio & Supply Co. v. Motorola, 5 Cir., 200 F.2d 911, at page 914, where the court says: “But apart from this infirmity we think the allegation claiming the existence of a conspiracy under Section 1 contains a more fundamental defect. It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation. Here it is alleged that the conspiracy existed between the defendant corporation, its president, Calvin, its sales manager, Kelly, and its officers, employees, representatives and agents who have been actively engaged in the management, direction and control of the affairs and business of defendants. This is certainly a unique group of conspirators. * * *» This court is unable to see in what" }, { "docid": "18202371", "title": "", "text": "page 151, par. 47, subject Conspiracy, the author in dealing with a civil conspiracy says, “that a corporation cannot be a party to a conspiracy consisting of the corporation and the persons engaged in the management, direction, and control of the corporate affairs, where the individuals are acting only for the corporation and not for any personal purpose of their own.” In Nelson Radio & Supply Co. v. Motorola, 200 F.2d 911, 914 (5th Cir. 1952), it was said: It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation. Here it is alleged that the conspiracy existed between the defendant corporation, its president, Calvin, its sales manager, Kelly, and its officers, employees, representatives and agents who have been actively engaged in the management, direction and control of the affairs and business of defendant. This is certainly a unique group of conspirators. The officers, agents and employees are not named as defendants and no explanation is given of their non-joinder. Nor is it alleged affirmatively, expressly, or otherwise, that these officers, agents, and employees were actuated by any motives personal to themselves. Obviously, they were acting only for the defendant corporation. * * * The defendant is a corporate person and as such it can act only through its officers and representatives. It has the right as a single manufacturer to select its customers and to refuse to sell its goods to anyone for any or no reason whatsoever. It does not violate the Act when it exercises its rights through its officers and agents, which is the only medium through which it can possibly act. We think that in naming these officers, employees and agents as conspirators the plaintiff was mistakenly attempting to avail himself of the doctrine that what it would not be illegal for a corporation to do alone would be illegal as a conspiracy when done" }, { "docid": "1817288", "title": "", "text": "liability upon the principal also. * * * If the payments of the commissions to Fitch by the Coal Company are illegal under the Robinson-Patman Act, such violation of the law is also charged to the defendant Potter who authorized the payments and made them as agent of the corporation. This brings Potter, as well as the Coal Company, within the civil liabilities provided by Section 4 of the Act, which gives a cause of action by reason of anything forbidden in the anti-trust law.” Not only does the above cited case fail to sustain plaintiff’s contention, but, in fact, the cases uniformly hold that a conspiracy cannot exist between a corporation and its officers and agents. Perhaps the clearest holding on this point is the case of Nelson Radio & Supply Co., Inc., v. Motorola, Inc., 5 Cir., 200 F.2d 911, at page 914, certiorari denied in 345 U.S. 925, 73 S.Ct. 783, wherein the Court said: “It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation. Here it is alleged that the conspiracy existed between the defendant corporation, its president, Calvin, its sales manager, Kelly, and its officers, employees, representatives and agents who have been actively engaged in the management, direction and control of the affairs and business of defendant. This is certainly a unique group of conspirators. The officers, agents and employees are not named as defendants and no explanation is given of their non-joinder. Nor is it alleged affirmatively, expressly, or otherwise, that these officers, agents, and employees were actuated by any motives personal to themselves. Obviously, they were acing only for the defendant corporation. It is true that the acts of the corporate officers may bring a single corporation within Section 2 of the Sherman Act, which covers an attempt to monopolize, but this is not because there exists in such circumstances, a conspiracy" }, { "docid": "16091739", "title": "", "text": "demand for money, property, or services made to any employee, officer, or agent of the state or of any political subdivision, or to any contractor, grantee, or other recipient, whether under contract or not, if any portion of the money, property, or services requested or demanded issued from, or was provided by, the state ... or by any political subdivision thereof. Similarly, § 12651 provides that the false claims actionable under Article 9 are those against the state or a political subdivision of the state. In light of its language and context, the Court concludes § 12653(b) does not assist federal whistleblowers. The Court GRANTS Defendants’ Motion to Dismiss Plaintiffs California False Claims Act cause of action. B. 12 U.S.C. § 1985 Conspiracy Claim — Application of the Intracor-porate Conspiracy Doctrine The Court holds the intracorporate conspiracy doctrine applies to 42 U.S.C. § 1985 conspiracy claims. Plaintiff alleges Defendant Fluor, three individual Fluor defendant employees, and Fluor’s retained counsel conspired among themselves to retaliate against Plaintiff for bringing' False Claims Act proceedings. The intracorporate conspiracy doctrine provides that, as a matter of law, a corporation cannot conspire with its own employees or agents. See Washington v. Duty Free Shoppers, 696 F.Supp. 1323, 1325 (N.D.Cal.1988). The logic for the doctrine comes directly from the definition of a conspiracy. A conspiracy requires a meeting of minds. See Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.1983). “It is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself anymore than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation.” Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953). Plaintiff argues the Supreme Court in Haddle v. Garrison, 525 U.S. 121, 119 S.Ct. 489, 142 L.Ed.2d 502 (1998), implicitly considered and rejected the intracorpo-rate conspiracy doctrine’s application to § 1985 by allowing an employee to bring a § 1985(2)" } ]

[ { "docid": "22550572", "title": "", "text": "disadvantageous transfer must be accompanied by appropriate hearings. Administrative transfers, although perhaps having very similar consequences for the prisoner, were exempt from the Court of Appeals ruling. Only disciplinary transfers having substantial adverse impact on the prisoner were to call for procedural formalities. Even so, our decision in Meachum requires a reversal in this case. We held in Meachum v. Fano, that no Due Process Clause liberty interest of a duly convicted prison inmate is infringed when he is transferred from one prison to another within the State, whether with or without a hearing^ absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events. We therefore disagree with the Court of Appeals’ general proposition that the Due Process Clause by its own force requires hearings whenever prison authorities transfer a prisoner to another institution because of his breach of prison rules, at least where the transfer may be said to involve substantially burdensome consequences. As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight. The Clause does not require hearings in connection with transfers whether or not they are the result of the inmate’s misbehavior or may be labeled as disciplinary or punitive. We also agree with the State of New York that under the law of that State Haymes had no right to remain at any particular prison facility and no justifiable expectation that he would not be transferred unless found guilty of misconduct. Under New York law, adult persons sentenced to imprisonment are not sentenced to particular institutions, but are committed to the custody of the Commissioner of Corrections. He receives adult, male felons at a maximum-security reception center for initial evaluation and then transfers them to specified institutions. N. Y. Corree. Law § 71 (1) (McKinney Supp. 1975-1976); 7 N. Y. C." } ]

[ { "docid": "11372011", "title": "", "text": "of life’s basic necessities. B. Plaintiffs Due Process Claims Plaintiff claims that defendants violated his due process rights by confining him to SHU and keeplock and by transferring him numerous times among and within New York correctional facilities, all without hearings or any disciplinary reason for doing so. In paragraph six of his objections, although not in his complaint, he claims that defendants transferred him for “retaliation and harrassment [sic] purposes.” 1. Segregated Confinement The Court recently held in Sandin v. Connor, — U.S. -, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), that where the conditions of disciplinary segregation are substantially similar to the conditions imposed upon inmates in administrative segregation and protective custody, disciplinary segregation does not present “the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.” Id. at —, 115 S.Ct. at 2301. Plaintiff neither alleges nor offers evidence to show that relative to the ordinary incidents of prison life, id. at —, 115 S.Ct. at 2300, the conditions of his segregated confinement presented an “atypical, significant deprivation” sufficient to create a liberty interest. Summary judgment against plaintiff as to this aspect of his claim is therefore appropriate. 2. Transfers The Due Process Clause does not “in and of itself protect a duly convicted prisoner against the transfer from one institution to another within the state prison system.” Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451, reh’g denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976). See also Montanye v. Haymes, 427 U.S. 236, 243, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976) (noting that New York prison officers have broad discretion to transfer prisoners). Moreover, “the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.” Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). A prisoner does have a viable § 1983 claim, however, if prison authorities transferred him in retaliation for exercising his constitutional rights. Meriwether v." }, { "docid": "22064586", "title": "", "text": "structuring the authority of prison administrators may warrant treatment, for purposes of creation of entitlements to ‘liberty,’ different from statutes and regulations in other areas.” Hewitt v. Helms, 459 U.S. 460, 470, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983). Thus in the case of prisoners: [a]s long as the conditions or degree of confinement to which a prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight. Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). For instance, a transfer from a preferable to an inferior prison does not in itself state a substantive due process claim, because in the absence of an appropriate state regulation a prisoner has no liberty interest in residence in one prison or another. “That life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules.” Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). Similarly, a prisoner has no protected liberty or property interest per se in avoiding transfer from a desirable to an onerous job in the prison system. No constitutional right exists to prevent the transfer of an inmate to a mental hospital (Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980)) or denial of release on parole (Greenholtz v. Inmates of Nebraska Penal Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979)) or denial of good time credits, (Wolff v. McDonnell, 418 U.S. 539, 556-57, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974)). But once the state creates such a liberty interest, due process protections attach to the decision to revoke the interest. The Supreme Court has held that a state can create a protected liberty interest by establishing sufficiently mandatory discretion-limiting standards or criteria to" }, { "docid": "16576747", "title": "", "text": "information. ICC resumed the hearing on August 27, 1991 recommended a P & I score of 4/1 with an override and placement in SMU. The warden approved. However, Central Classification ordered a rehearing because the required documents relied on by the ICC were not submitted. Conclusions of Law The first issue relevant to this issue are whether inmates within the Arizona Department of Corrections have a due process right in remaining in general population. Specifically, the issue is whether the inmates have a protected liberty interest in not having their public/institutional scores increased and remaining in general population, rather than being housed in higher custody facilities that segregate inmates. A. Do Plaintiffs have a protected liberty interest? The Fourteenth Amendment to the U.S. Constitution states that no state shall “deprive any person of life, liberty, or property without due process of law_” U.S. Const, amend. XIV, see. 1. Therefore, the first step in a due process analysis is the determination of whether plaintiffs have a protected liberty interest in being included in the general prison population. See Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir.1986). Without a liberty interest, the constitution does not require prison officials to grant inmates any procedural protection before placing those inmates in administrative segregation. Toussaint, 801 F.2d at 1089 (citing Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)). Liberty interests protected by the Fourteenth Amendment may arise from two sources: (1) the due process clause or (2) the laws of the states. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983). 1. Due Process Clause The Supreme Court has held that the due process clause itself does not create a liberty interest in remaining within the general prison population or being free from administrative segregation. Hewitt, 459 U.S. at 468, 103 S.Ct. at 869; Toussaint, 801 F.2d at 1091 (citing Hewitt, 459 U.S. at 468, 103 S.Ct. at 869). A liberty interest is not created even when administrative segregation involves “severe hardships”, i.e. denial of access to educational, recreational, vocational, and rehabilitative programs," }, { "docid": "918738", "title": "", "text": "violated his rights by failing to provide him with adequate living conditions and meaningful medical treatment. The Fourteenth Amendment due process clause provides that the State shall not deprive any person of life, liberty, or property without due process of law. See Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986). Courts have historically applied this guarantee of due process to deliberate decisions of government officials to deprive a person of life, liberty, or property. Id. An inmate has no constitutional right to a particular prison classification or status. Moody v. Daggett, 429 U.S. 78, 88, 97 S.Ct. 274, 279, 50 L.Ed.2d 236 (1976) (discussing Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), where the Supreme Court found that a state prisoner was not entitled to due process protections upon the discretionary transfer to a substantially less agreeable prison even where the transfer resulted in “grievous loss” to the inmate); see Hewitt v. Helms, 459 U.S. 460, 466-67, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983) (noting that the due process clause does not implicitly create an interest in being confined to a general population facility rather than administrative segregation quarters); Ervin v. Busby, 992 F.2d 147, 149-50 (8th Cir.1983) (citing Meachum, 427 U.S. at 225, 96 S.Ct. at 2538, in noting that “the Supreme Court has ruled that the due process clause does not in itself protect a convicted prisoner from transfer between jails in the state prison systems”). Long does not have even an arguable property or liberty interest in being classified in any way or in any particular type of medical treatment. Thus, placing Long in an “inappropriate” facility and denying his desired medical treatment without giving him the opportunity to be heard does not violate the Fourteenth Amendment. Long has not established that defendants violated his due process rights, and his request for relief as to this claim is denied. D. Qualifíed Immunity Qualified immunity shields government officials from liability for money damages when performing discretionary functions if “their conduct does not violate clearly established" }, { "docid": "1039937", "title": "", "text": "has consistently refused to recognize liberty interests arising from the Constitution itself in situations involving the alteration of a more conditional right or status afforded a lawfully confined prisoner. The Court’s recent decisions emphasize that “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the constitution, the Due Process Clause does not in and of itself subject an inmate’s treatment by prison authorities to judicial oversight”. Montanye v. Haymes, 1976, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466; see also, e.g., Hewitt v. Helms, 1983, 459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675. Accordingly, the Court has found no constitutionally based liberty interest in the involuntary transfer of a prisoner to a different prison facility, Olim v. Wakinekona, 1983, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813; Montanye v. Haymes, 1976, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466; in the transfer of a prisoner from the general prison population to administrative confinement, Hewitt v. Helms, 1983, 459 U.S. 460,103 S.Ct. 864, 74 L.Ed.2d 675; in the transfer of a prisoner from a less restrictive facility to a more restrictive facility, Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451, reh’g denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155; or in the initial determination whether discretionary parole-release should be granted a prisoner, Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 1979, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668. The liberty afforded a prisoner in a work release program falls somewhere in between the less restricted liberties enjoyed by a parolee or probationer and the more restricted status conferred upon prisoners incarcerated within the general prison population. Whitehorn asserts that his loss of work-release status — a status which enables the prisoner to leave the general prison population and allows him some of the same liberties enjoyed by parolees and probationers — is a loss so grievous as to trigger a right to due process protections" }, { "docid": "2439820", "title": "", "text": "by the courts of South Carolina, he is lawfully confined in prison and may be subjected to the usual conditions and disadvantages of that confinement. See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). The use of administrative segregation, or “lock-up,” is an acceptable form of confinement or discipline, within the discretion of prison officials, absent “explicitly mandatory language” in the state law which limits the discretion of the prison officials or prohibits the use of administrative segregation. See Berrier v. Allen, 951 F.2d 622, 625 (4th Cir. Dec. 13, 1991). An inmate has no liberty interest in remaining in the general prison population because administrative segregation is “the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration.” Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). Segregation is one of the conditions of confinement typically contemplated when a person receives a prison sentence; therefore, it is neither cruel and unusual, nor is it a violation of due process. The Court in Hewitt also noted that a liberty interest generally arises from either the Due Process Clause or from state law. Id. at 466. The plaintiff here provides no authority that state law, as opposed to SCDC regulations, establishes a liberty interest. Finding none under either state law or the Due Process Clause, Keeler is not entitled to relief. Keeler’s second area of disagreement with the magistrate judge is his contention that because he was found not guilty by the Inmate Advisory Council, Pea made a false charge against the plaintiff. Such a conclusion does not necessarily follow. As pointed out by the magistrate judge, just as a verdict of “not guilty” does not necessarily guarantee that a cause of action for malicious prosecution or false arrest will follow in the non-prison setting. The consideration for any court is whether the “arresting officer” had probable cause to act, given the information available at the time he filed charges against the plaintiff. The magistrate judge outlined the facts known to Pea at the time" }, { "docid": "11372012", "title": "", "text": "significant deprivation” sufficient to create a liberty interest. Summary judgment against plaintiff as to this aspect of his claim is therefore appropriate. 2. Transfers The Due Process Clause does not “in and of itself protect a duly convicted prisoner against the transfer from one institution to another within the state prison system.” Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451, reh’g denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976). See also Montanye v. Haymes, 427 U.S. 236, 243, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976) (noting that New York prison officers have broad discretion to transfer prisoners). Moreover, “the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.” Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). A prisoner does have a viable § 1983 claim, however, if prison authorities transferred him in retaliation for exercising his constitutional rights. Meriwether v. Coughlin, 879 F.2d 1037, 1046 (2d Cir.1989). In light of this precedent, merely transferring a prisoner among and within four correctional facilities in the span of three weeks, for the asserted reason of carrying out an escape investigation, does not implicate a protected liberty interest. What is more, plaintiff never alleges, and there is no evidence to suggest, that he had exercised any constitutional rights in retaliation for which defendants might have acted. Summary judgment against plaintiff on his transfer-based due process claims is therefore proper. C. Qualified Immunity Defendants raised qualified immunity as an affirmative defense. In light of the foregoing, the Court only needs to determine whether defendants are entitled to qualified immunity with respect to plaintiffs claim that the conditions in his cell were sufficiently bad to violate the Eighth Amendment. “Once qualified immunity is pleaded, plaintiffs complaint will be dismissed unless defendant’s alleged conduct, when committed, violated ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Williams v. Smith, 781 F.2d 319, 322 (2d Cir.1986)" }, { "docid": "13166391", "title": "", "text": "release and that it has thereby conferred an enforceable liberty interest on eligible participants. In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not itself create in an inmate a protected interest in being confined in the general prison population. Id. at 467-68, 103 S.Ct. at 869-70. Instead, the Clause standing alone requires only that an inmate be confined under conditions consistent with his sentence, id. at 468, 103 S.Ct. at 869 (citing Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976)), and “administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration,” id. See also Olim v. Wakinekona, 461 U.S. 238, 247, 103 S.Ct. 1741, 1746, 75 L.Ed.2d 813 (1983) (transfer for confinement in another state is within normal range of custody); Meachum v. Fano, 421 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976) (transfer within state is within normal range of custody); cf. Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (transfer to mental hospital is not within normal range of custody). A state may create by statute or regulation an interest protected by the Due Process Clause even though the same interest is not among those protected by the Clause standing alone. See Hewitt, 459 U.S. at 470-71, 103 S.Ct. at 870-71; Vitek, 445 U.S. at 487-92, 100 S.Ct. at 1260-64. However, as the Supreme Court recently made clear in Sandin v. Conner, — U.S.-, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), while such language may create interests which are protected by the Due Process Clause, “these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, ... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id., at-, 115 S.Ct." }, { "docid": "13420971", "title": "", "text": "authority because running a prison is an “extraordinarily difficult undertaking.” Wolff v. McDonnell 418 U.S. 539, 566, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974). Thus, the Supreme Court has concluded that “to hold ... that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than the federal courts.” Meachum v. Farm, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). The Supreme Court has “consistently refused to recognize more than the most basic liberty interests in prisoners.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). It is beyond question that “[1 ]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights.” Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Thus, the Supreme Court has long recognized that prison officials have the authority to transfer an inmate to more restrictive quarters for non-punitive reasons. Hewitt, 459 U.S. at 466, 103 S.Ct. at 869 (“administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration”). The case before us differs from Hewitt only in that Mitchell raises the non-frivolous contention — and from the record before us, we cannot tell whether there is a basis for the contention — that the prison officials placed Mitchell in isolation for punitive reasons and not that he was segregated for administrative reasons. Finally, we should note that in addition to the Due Process Clause itself, liberty interests that are recognizable under the Fourteenth Amendment may also arise from the laws of the states. Hewitt, 103 S.Ct. at 869. State laws and regulations can create recognizable liberty interests by placing substantive limitations on the discretion of a prison official. Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). We thus remand this case also because Mitchell contends — aside from alleged rights" }, { "docid": "9340544", "title": "", "text": "him with notice of the reason for his confinement and an opportunity to respond, to both of which, Berrier contended, he was entitled by virtue of his constitutionally protected liberty interest in remaining in the general prison population. A magistrate judge to whom the case was referred held that the regulations conferred on Berrier a protected liberty interest of which he had been deprived without due process, but the district court rejected this view and dismissed Berrier’s action. This appeal followed. II The safeguards of the Due Process Clause are triggered only when a Fourteenth Amendment-protected liberty interest is at stake. See Meachum v. Fano, 427 U.S. 215, 223-24, 96 S.Ct. 2532, 2537-38, 49 L.Ed.2d 451 (1976). “Liberty interests protected by the Fourteenth Amendment may arise from two sources— the Due Process Clause itself and the laws of the States.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983). The Due Process Clause itself confers only a very limited range of protected liberty on inmates lawfully convicted and confined in prison. Its substantive protection extends only to punishment and conditions of confinement not contemplated by the original prison sentence. See, e.g., Vitek v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552 (1980) (liberty interest of prison inmate in not being involuntarily transferred to mental hospital arises out of Due Process Clause). The Due Process Clause does not independently create “an interest in being confined to a general population cell, rather than the more austere and restrictive administrative segregation quarters,” Hewitt, 459 U.S. at 466-67, 103 S.Ct. at 869, because “administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration,” id. at 468, 103 S.Ct. at 870. Ber-rier is left, then, with only state law as a potential source of a protected liberty interest that could have been implicated by his confinement in administrative segregation. Berrier relies on 5 N.C.Admin.Code 2C.0302 as conferring on him a Fourteenth Amendment-protected liberty interest. That regulation provides, in relevant part, that (c) In cases where an" }, { "docid": "14787340", "title": "", "text": "S.Ct. 2532, 2537-38, 49 L.Ed.2d 451 (1976); Walker v. Hughes, 558 F.2d 1247, 1250 (6th Cir.1977). The nature of the claimed interest here is a liberty interest in not being placed in disciplinary segregation, as opposed to re maining in the general prison population. The Due Process Clause does not, in and of itself, create a liberty interest in being confined to a general population cell. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983); McCrae v. Hankins, 720 F.2d 863, 866 (5th Cir.1983). A state may create a protected liberty interest, however, through promulgation of statutes, rules, regulations or policy statements. See, e.g., Hewitt, 459 U.S. at 472, 103 S.Ct. at 871 (state-created liberty interest in not being placed in administrative segregation absent substantive predicates); Wolff v. McDonnell, 418 U.S. at 557, 94 S.Ct. at 2975 (state-created right to good-time credits and protected interest in not being deprived of those credits without minimum procedures); Mayes v. Trammell, 751 F.2d 175, 179 (6th Cir.1984) (policy statements created a liberty interest in expectation of parole release); Bills v. Henderson, 631 F.2d 1287, 1294 (6th Cir.1980) (state-created liberty interest in not being transferred to administrative segregation absent specified findings); Walker v. Hughes, 558 F.2d at 1256 (state-created liberty interest in not having certain punishment sanctions imposed, including disciplinary segregation, absent a finding of major misconduct). In determining whether state-enacted rules create a protected liberty interest in a prison setting, a court focuses on whether the state has imposed “substantive limitations” on the discretion of prison officials, see Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983) (Hawaii prison regulations, which placed no “substantive limitations” on prison officials’ discretion to transfer an inmate, created no liberty interest in remaining in Hawaii prisons); Meachum v. Fano, 427 U.S. 215, 226-28, 96 S.Ct. 2532, 2539-40, 49 L.Ed.2d 451 (1976) (finding no state-created liberty interest in remaining in prison originally assigned to, since the state statute did not limit prison officials’ discretion to transfer prisoners for any reason); or, in other words, whether the" }, { "docid": "13411621", "title": "", "text": "time credits. The State had assured its inmates that neither would be imposed unless serious misconduct had occurred. Dudley has asserted no similar assurance by the State of Georgia or Daugherty County. The Court’s most recent discussion of this issue was in Hewitt v. Helms, - U.S. -, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), which held that solitary confinement for administrative reasons does not involve an interest independently protected by the due process clause. Id. at 869. The Court recognized an inmate’s protected liberty interest in remaining in the general prison population only because Pennsylvania statutes and regulations had set forth specific procedures for confining an inmate to administrative segregation. Addressing the protections afforded by the due process clause itself, the Court stated: As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution; the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight. Id. at 869 (quoting Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976)). Although Hewitt dealt only with segregation for “nonpunitive” reasons, it is consistent with previous decisions involving disciplinary measures imposed upon inmates. In addition to Wolff, the cases most analogous to the issue presented here are Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), both of which involved the transfer of inmates within a state’s prison system. Meachum held that no due process liberty interest is infringed when a convicted inmate is transferred from one prison to another absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the appearance of other specified events. 96 S.Ct. at 2540. The Court cautioned that the day-to-day functioning of state prisons involves issues and discretionary decisions that are not the business of federal judges. Id. The decision in Montanye took Meachum one step further" }, { "docid": "18782472", "title": "", "text": "Meachum that a conviction authorizes the state to confine a prisoner in any of its institutions, even though one may be much less pleasant than another. For the same reason a state may confine its prisoners in any cell within a prison or change the prisoner’s regimen — individual meals in segregation instead of group meals in the general population, fewer showers, less exercise, and so on. Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983) (segregation within a prison “is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration ). There is no constitutional difference between segregation and the general population; prisoners have no entitlement that prisons have “general populations”, as our recent decision sustaining the “lockdown” of the entire population at Marion for more than nine months shows. Caldwell, 790 F.2d at 600-05. The panel did not discuss these principles in 1978. It did not cite Meachum and similar cases. Hewitt, which held that a prisoner does not have a constitutional interest in remaining in the general population, was not decided until 1983. True, Meachum and Hewitt interpreted the fourteenth rather than the eighth amendment. Yet these cases are not accidents of pleading. The Court would not have rendered a different decision if the prisoners had argued their cases under the eighth amendment instead of the due process clause of the fourteenth. After all, the eighth amendment applies to the states only to the extent it has been “incorporated” in the due process clause of the fourteenth. Mea-chum, Hewitt, Hudson (holding that prisoners have no legitimate expectation of privacy), and similar cases establish that the Constitution does not entitle prisoners to live in the best conditions a prison has to offer. The state may create protected interests. It may, for example, adopt rules providing that people will be sent to Marion (or closer confinement within Marion) only on account of misconduct. Rules restricting the discretion of officials may establish legitimate claims of entitlement of which prisoners may be deprived only with due process of law." }, { "docid": "5063134", "title": "", "text": "his situation in such a manner. Liberty interests protected by the Fourteenth Amendment may arise directly from the Due Process Clause itself or from the laws of the states. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989); Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). However, “lawfully incarcerated persons retain only a narrow range of protected liberty interests.” Helms, 459 U.S. at 467, 103 S.Ct. at 869. See also Hernandez v. Coughlin, 18 F.3d 133, 136-37 (2d Cir.1994). Thus, the Court has held that an inmate has no inherent liberty interest in commutation of his sentence, Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981); in being paroled, Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668 (1979); in receiving good-time credit for satisfactory behavior while in prison, Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); in avoiding “administrative” (nonpun-itive) segregation from the general prison population, Helms, 459 U.S. at 468, 103 S.Ct. at 869-70; or in remaining in one correctional institution rather than another, Olim v. Wakinekona, 461 U.S. 238, 248, 103 S.Ct. 1741, 1746-47, 75 L.Ed.2d 813 (1983); Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538-39, 49 L.Ed.2d 451 (1976). In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not itself give rise to a protected interest in being confined in the general prison population. Id. at 467-68, 103 S.Ct. at 869-70. Instead, the Clause standing alone requires only that an inmate be confined under conditions consistent with his sentence, id. at 468, 103 S.Ct. at 869-70 (citing Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547-48, 49 L.Ed.2d 466 (1976)), and that “administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in" }, { "docid": "22949688", "title": "", "text": "the report reflected Sergeant Harris’ view that the inmates’ explanation was implausible: the guards had appeared too suddenly to have allowed another inmate time to slip the file under McCrae’s bed, and the bed was neatly made at the time, not wrinkled as if recently disturbed. The Supreme Court recently concluded in Hewitt v. Helms, — U.S. —, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), that the Due Process Clause of the Fourteenth Amendment does not itself create in an inmate a protected interest in being confined in the general prison population. Id. at —-—, 103 S.Ct. at 869-70. Instead, the Clause standing alone requires only that an inmate be confined under conditions consistent with his sentence, id. at —, 103 S.Ct. at 869 (citing Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976)), and “administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration.” Hewitt, —U.S. at —, 103 S.Ct. at 870. See Olim v. Wakinekona, — U.S. —, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (transfer for confinement in another state is within normal range of custody) Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (transfer within state is within normal range of custody); cf. Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (transfer to mental hospital is not within normal range of custody). A state may, however, create by statute or regulation an interest protected by the Due Process Clause even though the same interest is not among those protected by the Clause standing alone. E.g. Hewitt, — U.S. at —-—, 103 S.Ct. at 870-71; Vitek, 445 U.S. at 487-92, 100 S.Ct. at 1261-63 (state-created liberty interest in not being transferred to mental hospital); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11-13, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979) (parole); Wolff v. McDonnell, 418 U.S. 539, 556-57, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) (revocation of good-time credits). Regulations of Louisiana’s Department of Corrections, in effect at the time" }, { "docid": "16576748", "title": "", "text": "population. See Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir.1986). Without a liberty interest, the constitution does not require prison officials to grant inmates any procedural protection before placing those inmates in administrative segregation. Toussaint, 801 F.2d at 1089 (citing Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)). Liberty interests protected by the Fourteenth Amendment may arise from two sources: (1) the due process clause or (2) the laws of the states. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983). 1. Due Process Clause The Supreme Court has held that the due process clause itself does not create a liberty interest in remaining within the general prison population or being free from administrative segregation. Hewitt, 459 U.S. at 468, 103 S.Ct. at 869; Toussaint, 801 F.2d at 1091 (citing Hewitt, 459 U.S. at 468, 103 S.Ct. at 869). A liberty interest is not created even when administrative segregation involves “severe hardships”, i.e. denial of access to educational, recreational, vocational, and rehabilitative programs, confinement to cells for long periods, or restrictions in exercise privileges. Hewitt, 459 U.S. at 468, 103 S.Ct. at 869. The Supreme Court has also held that there is no liberty interest implicated in a prison’s reclassification and transfer decisions. Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538. Given a valid criminal conviction, a criminal defendant has been constitutionally deprived of his liberty to the extent that the state may confine him and subject him to the rules of its prison systems so long as the conditions of confinement do not otherwise violate the Constitution. Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538. The Constitution does not require that the state have more than one prison for convicted felons, nor does it guarantee that the convicted prisoner will be placed in any particular prison. Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538. The conviction has sufficiently extinguished the defendant’s liberty interest to empower the state to confine him in any of its prisons. Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538." }, { "docid": "5063135", "title": "", "text": "2975, 41 L.Ed.2d 935 (1974); in avoiding “administrative” (nonpun-itive) segregation from the general prison population, Helms, 459 U.S. at 468, 103 S.Ct. at 869-70; or in remaining in one correctional institution rather than another, Olim v. Wakinekona, 461 U.S. 238, 248, 103 S.Ct. 1741, 1746-47, 75 L.Ed.2d 813 (1983); Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538-39, 49 L.Ed.2d 451 (1976). In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not itself give rise to a protected interest in being confined in the general prison population. Id. at 467-68, 103 S.Ct. at 869-70. Instead, the Clause standing alone requires only that an inmate be confined under conditions consistent with his sentence, id. at 468, 103 S.Ct. at 869-70 (citing Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547-48, 49 L.Ed.2d 466 (1976)), and that “administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration,” id. See also Olim v. Wakinekona, 461 U.S. 238, 247, 103 S.Ct. 1741, 1746, 75 L.Ed.2d 813 (1983) (transfer for confinement in another state is within normal range of custody); Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976) (transfer within state is within normal range of custody); cf. Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (transfer to mental hospital is not within normal range of custody). The Supreme Court recently made clear in Sandin v. Conner, — U.S. -, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), that, while governments may create by statute or regulation interests which are protected by the Due Process Clause even though the same interests are not among those protected by the Clause standing alone, “these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, ... nonetheless imposes atypical and" }, { "docid": "13166390", "title": "", "text": "U.S. 238, 248, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983); Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976); or in avoiding “administrative” (nonpunitive) segregation from the general prison population, Helms, 459 U.S. at 468, 103 S.Ct. at 869. But cf. Vitek v. Jones, 445 U.S. 480, 491-94, 100 S.Ct. 1254, 1263-65, 63 L.Ed.2d 552 (1980) (holding that prisoner retained a “residuum of liberty” that was infringed by his summary transfer to a mental hospital). The plaintiff does not contend that he has an inherent right to participate in the boot camp. Rather, he contends that the defendants, by issuing detainers against him, have effectively kept him in a higher custody classification and thereby subjected him to longer incarceration than a minimum custody prisoner faces in the absence of such detain-ers, thus depriving him of a liberty interest. In essence, the plaintiff claims that the Bureau of Prisons promises participants in its boot camp programs that their successful completion of such a program will lead to their early release and that it has thereby conferred an enforceable liberty interest on eligible participants. In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not itself create in an inmate a protected interest in being confined in the general prison population. Id. at 467-68, 103 S.Ct. at 869-70. Instead, the Clause standing alone requires only that an inmate be confined under conditions consistent with his sentence, id. at 468, 103 S.Ct. at 869 (citing Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976)), and “administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration,” id. See also Olim v. Wakinekona, 461 U.S. 238, 247, 103 S.Ct. 1741, 1746, 75 L.Ed.2d 813 (1983) (transfer for confinement in another state is within normal range of custody); Meachum v. Fano, 421 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976) (transfer within state" }, { "docid": "5311795", "title": "", "text": "or other specified events. See Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976); Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). Matiyn had no liberty interest in remaining at the Auburn facility since New York law does not place conditions on interprison transfers. Montanye, 427 U.S. at 243, 96 S.Ct. at 2547; Sher v. Coughlin, 739 F.2d 77, 80 (2d Cir.1984). More difficult to resolve is the issue of whether Matiyn’s four-day confinement in Auburn’s SHU prior to being transferred to Attica deprived him of a protected liberty interest. In analyzing intraprison restrictive confinements, this circuit has drawn a distinction between confinement as a disciplinary sanction and confinement as an administrative procedure. Generally, when an inmate of the New York prison system is confined to SHU for disciplinary reasons, he is deprived of a liberty interest which is protected by state law. Sher, 739 F.2d at 81. Under such circumstances, due process entitles the prisoner to certain procedural protections as set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). On the other hand, when a prisoner is confined to SHU for administrative reasons, he is entitled to fewer procedural protections. Generally, prison inmates have no liberty interest in remaining within the general prison population, and out of administrative segregation, unless the state has chosen to create such an interest by enacting certain statutory or regulatory measures. Hewitt v. Helms, 459 U.S. 460, 468-69, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983). The mere adoption by the state, however, of “procedural guidelines, without more,” is insufficient to give rise to a liberty interest protected under the fourteenth amendment; only “the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.” Id. at 471-72, 103 S.Ct. at 871. In addition, even when the state creates a protected liberty interest, the inmate confined for administrative reasons is entitled to only minimal process— “some notice of the charges" }, { "docid": "10878909", "title": "", "text": "in a particular institution within the state system. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). [T]he Due Process Clause [does not] in and of itself protect a duly convicted prisoner against transfer from one institution to another within the state prison system. Confinement in any of the State’s institutions is within the normal limits of range of custody which the conviction has authorized the State to impose. That life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules. Id. at 225, 96 S.Ct. at 2538. Consequently, the Constitution does not mandate certain procedural formalities, such as a hearing, prior to transfer. It is equally well-established, however, that state statutes, practices, or duly promulgated prison regulations may create liberty interests deserving of the procedural protections of the Due Process Clause. See Vitek v. Jones, 445 U.S. 480, 487, 100 S.Ct. 1254, 1260, 63 L.Ed.2d 552 (1980); Shango v. Jurich, 681 F.2d 1091. If state statutes or prison regulations condition transfer on the occurrence of specific events, such as misconduct, a liberty interest is created. Meachum v. Fano, 427 U.S. at 228, 96 S.Ct. at 2540. In his brief, Harris manifests awareness of this court’s decisions in Shango v. Jurich, 681 F.2d 1091, and Chavis v. Rowe, 643 F.2d 1281 (7th Cir.1981). In Chavis, we held that A.R. 819, the transfer regulation at issue in this case, creates no justifiable expectation that a resident will not be transferred absent the occurrence of spedfied events. In Shango, we reiterated that the regulation places no limitations on prison officials’ unfettered discretion to transfer a resident “for whatever reason or for no reason at all.” Shango v. Jurich, 681 F.2d at 1100. Harris, in an effort to avoid application of the principle of stare decisis in this case, contends that the Supreme Court’s recent decision in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), undermines the reasoning" } ]

[ { "docid": "19078449", "title": "", "text": "it is necessary to define the term claim. The Bankruptcy Code itself states that a “claim” is a: right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured. 11 U.S.C. § 101(5). Under contract law, an “unmatured” or “contingent” claim “refer[s] to obligations that will become due upon the happening of a future event that was ‘within the actual or presumed contemplation of the parties at the time the original relationship between the parties was created.’” In re Chateaugay Corp., 944 F.2d 997, 1004 (2d Cir.1991) (quoting In re All Media Properties, Inc., 5 B.R. 126, 133 (Bankr.S.D.Tex.1980), aff'd mem., 646 F.2d 193 (5th Cir.1981)). This case does not fall under contract law, raising the question whether a claim for yet-to-be-awarded sanctions can be deemed to arise prepetition if the possibility of the claim was within the contemplation of the parties. We need not decide this question, however, because we disagree with the courts below that the sanctions award was within the parties’ contemplation before the bankruptcy plan was confirmed. First, the parties could not reasonably have expected that attorneys’ fees would be awarded to the prevailing party pursuant to Fed.R.Civ.P. 68 because that rule only provides for an award of costs and not for an award of attorneys’ fees. See Fed.R.Civ.P. 68 (“If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.”) (emphasis added). The Kentucky district court stated that it would look to the unsuccessful party to pay attorneys’ fees. However, the law is clear that the court does not have the power under Rule 68 to award attorneys’ fees and that each party is responsible for bearing its own attorneys’ fees. See Colombrito v. Kelly, 764 F.2d 122, 133 (2d Cir.1985). Also, Rule 68 applies only when offers are made by the defendant and a judgment is obtained by the plaintiff. See Delta Air Lines, Inc. v. August, 450 U.S. 346, 350, 101 S.Ct." } ]

[ { "docid": "2061994", "title": "", "text": "on a written indemnification contract arises at the time, the indemnification agreement is executed. See Houbigant, Inc. v. ABC Mercantile, Inc. (In re Houbigant, Inc.), 188 ,B.R. 347, 358-59 (Bankr.S.D.N.Y.1995) (“[A] contractual indemnification claim exists as a contingent claim against the indemnitor as of the date the indemnification agreement is executed.”); see also Woburn Assocs. v. Kahn (In re Hemingway Transport, Inc.), 954 F.2d 1, 9 n. 9 (1st Cir.1992) (“When parties agree in advance that one party will indemnify the other party in the event of a certain occurrence, there exists a right to payment, albeit contingent, upon the signing of the agreement.”) (quoting Avellino & Bienes v. M. Frenville Co. (In re M. Frenville Co.), 744 F.2d 332, 336 (3d Cir.1984)) (emphasis in original) (internal quotation marks omitted). We agree \"with the bankruptcy and district courts that Olin possessed a valid contingent claim at the time that River-wood filed for bankruptcy. We find that environmental clean-up liability was contemplated by the parties upon the signing of the indemnity agreements for two reasons. First, Olin operated the Plant 94 site for wood preserving operations immediately prior to the execution of the first indemnification agreement. These wood preserving activities produced the hazardous substances for which the Louisiana Department of Environmental Quality now seeks clean-up under LEQA. Second, the terms of the indemnification agreements were so broad as to encompass all types of future liability, signaling that the parties actually or presumedly contemplated possible environmental liability and Lability arising from statutes enacted in the future. A “claim” may exist even where, as in this case, the parties lack complete knowledge about the scope of its potential liability. See LTV Corp. (In re Chateaugay Corp.), 944 F.2d at 1004-05. Thus, the fact that Olin did not know the specific parameters of its liability does not place that liability outside of the definition of “claim” but rather is precisely what made the claim contingent. Under this specific combination of circumstances, we find that future environmental liability was actually or presumedly contemplated by the parties upon their signing of the indemnification agreements and constitutes" }, { "docid": "14967319", "title": "", "text": "its terms and other similar scrutiny will generally define obligations arising from pre-petition indemnity agreements as pre-petition claims. See Houbigant, Inc. (ACB Mercantile, Inc. v. Houbigant, Inc.), 188 B.R. 347, 358 (Bankr.S.D.N.Y.1995); In re New York Trap Rock Corp., 137 B.R. 568, 573 (Bankr.S.D.N.Y.1992); In re Chateaugay Corp., 102 B.R. 335, 352 (Bankr.S.D.N.Y.1989) (“Chateaugay ”). See also In re Hemingway Transport, Inc. (Woburn Assocs. v. Kahn), 954 F.2d 1 (1st Cir.1992); In re THC Fin. Corp., 686 F.2d 799 (9th Cir.1982). Indemnity agreements are intended to establish contingent future obligations immediately upon execution. Whether a future event triggers such obligation is a function of the scope of the agreement as governed by the intent of the parties when entering into such agreement. The Indemnity Agreements undoubtedly created obligations that may become due upon the happening of a future event. Also, it is clear from the breadth of the language in the Indemnity Agreements that indemnification for future environmental cleanup liability was within the actual or presumed contemplation of Olin and Olinkraft at the time the provisions were executed. Further evidence of the intent of the parties is Olin’s recent demand letter to Riverwood which states that “[t]he broad, all inclusive language [of the Indemnity Agreements] illustrates the parties intent to resolve all liabilities.” (demand letter from Monica Fries to Leonard L. Kilgore, III, Esq. of 6/28/96 at p. 7). As admittedly the parties intent was for Olinkraft to indemnify Olin for all liabilities, the parties must have intended that Olinkraft indemnify Olin for future statutory liability at the time the Indemnity Agreements were executed. In sum, under the LTV test or any other similar analysis, the Indemnity Agreements were contingent contract claims at the time MFP filed its petition for relief under chapter 11 of the Code. It is of no moment that Olin’s specific right to indemnity triggered by LEQA did not mature until after the Bar Date and Confirmation Order. Olin’s right to indemnity was contingent at the time the Indemnity Agreements were executed with respect to all liabilities. It is irrelevant whether the event triggering the Debtor’s" }, { "docid": "14967316", "title": "", "text": "of the time at which a claim arises under the Code.”). Because contingent and unmatured rights of payment are “claims” under the Code, it is possible that a right to payment that is not yet enforceable at the time of the filing of the petition under non-bankruptcy law, may be defined as a claim within section 101(5)(A) of the Code. A contingent claim within the meaning of section 101(5) is a debt that “does not become an obligation until the occurrence of a future event, but is noncontingent when all of the events giving rise to the liability for the debt occurred prior to the debtor’s filing for bankruptcy.” In re Mazzeo (Mazzeo v. United States), 131 F.3d 295, 303 (2d Cir.1997). Discharge of contingent and unmatured claims has received significant attention; most notably and ironically including Johns-Manville’s chapter 11 fihng and the significant number of asbestosis claimants whose claims were contingent and undiscoverable at the time of confirmation. See In re Johns-Manville Corp., 57 B.R. 680 (Bankr.S.D.N.Y.1986). However, there are fundamental differences between types of contingency claims. Namely, depending on whether'the claim is based on tort, statute or contract, the results of any determination of when that claim arose may differ significantly. See In re Chateaugay Corp. (United States v. LTV Corp.), 944 F.2d 997, 1004-05 (2d Cir.1991) (“LTV”) (discussing the difference between contingent tort claims and contingent contract claims); In re Water Valley Finishing, Inc. (Big Yank Corp. v. Liberty Mutual Fire Ins. Co.), 139 F.3d 325, 328 (2d Cir.1998) (reversing district court’s finding that claim for attorneys’ fees was discharged because the Second Circuit found that such claim was not based on a contract but imposed by the court). Based on the potential difference in claim accrual date, a determination of the type of potential claim Olin had arising out of the Indemnity Agreements is a threshold issue. Olin bases its right to payment in these proceedings on pre-petition indemnity agreements. The legal relationship which created Olin’s alleged present right to indemnity is a pre-petition contract. The derivation of liability and focus of these proceedings is whether" }, { "docid": "2061996", "title": "", "text": "a valid contingent claim. We also agree with the bankruptcy and district courts that Olin’s claims arose pre-petition. Here, the relationship between the parties was created upon the signing of the indemnity agreements in 1967 and 1974. See Houbigant Inc. (In re Houbigant, Inc.), 188 B.R. at 358-59. The indemnity agreements provided that Olinkraft would indemnify Olin upon the happening of a future event giving rise to liability against Olin from its forest products division. The fact that the contingency in this case — the environmental liability claim against Olin — materialized post-petition does not transmogrify the claim into a post-petition claim, but merely means that the contingent claim moved closer to becoming liquidated upon the happening of that contingency. See In re Chateau-gay Corp., 102 B.R. 335, 352 (Bankr. S.D.N.Y.1989). Like the lower courts in this case, we reject Olin’s arguments predicated on cases which held that a claim flowing directly from a statute enacted post-petition is not discharged by confirmation even if based upon pre-petition acts. See, e.g., LTV Steel Co. (In re Chateaugay Corp.), 53 F.3d at 497 (holding claim based on Coal Act, which was enacted after the discharge date, was not barred); Chicago, Milwaukee, St. Paul & Pac. R.R. v. Union Pac. R.R., 78 F.3d 285, 288-90 (7th Cir.1996) (holding claim based on Model Toxics Control Act of the State of Washington, which was enacted after the discharge date, was not barred); In re Reading Co., 115 F.3d 1111, 1122-23 (3d Cir.1997) (holding claim based on Comprehensive Environmental Response, Compensation, and Liability Act (“CERL-CA”), which was enacted after the discharge date, was not barred); In re Penn Central Transp. Co., 944 F.2d 164, 167-68 (3d Cir.1991) (holding claim based on CERCLA, which was enacted after the discharge date, was not barred). Olin’s liability here is triggered by LEQA but it flows from the indemnification agreements, which allocated risk from a category of anticipated losses without reference or limitation to particular causes of action or particular statutes. In short, Olin brought a contract cause of action based on a pre-petition contract, not a statutory claim for" }, { "docid": "2061992", "title": "", "text": "claimants with a provable claim. See 11 U.S.C. § 103(a). Consequently, under the Bankruptcy Act of 1898, contingent or un-liquidated claims incapable of reasonable or prompt valuation were disallowed entirely as unprovable but survived the discharge. See 11 U.S.C. § 63. Congress realized the provability requirement ill-served the policies underlying bankruptcy and broadened the definition of “claim” in the Bankruptcy Reform Act of 1978. See In re Johns-Manville Corp., 57 B.R. 680, 686-87 (Bankr.S.D.N.Y.1986); see also United States v. LTV Corp. (In re Chateaugay Corp.), 944 F.2d 997, 1003 (2d Cir.1991) (Congress gave the term claim a broad definition and “contemplate[d] that all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case”) (quoting H.R.Rep. No. 95-595, at 309 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6266) (internal quotation marks omitted). Under the current code, even contingent and unliquidated debts can constitute claims. See 11 U.S.C. §§ 101(5)(A), 1141(d)(1). The Bankruptcy Code does not specifically define “contingent” claims. However, in the context of a contract claim, such as the case here, we have said that contingent claims refer “to obligations that will become due upon the happening of a future event that was within the actual or presumed contemplation of the parties at the time the original relationship between the parties was created.” LTV Corp. (In re Chateaugay Corp.), 944 F.2d at 1004 (internal quotation marks omitted). Even if Olin’s indemnification rights constitute rights to payment under the Bankruptcy Code, those rights will be considered discharged only if they arose before the filing of the petition. See LTV Steel Co. (In re Chateaugay Corp.), 53 F.3d at 497. A claim will be deemed to have arisen pre-petition if “the relationship between the debtor and the creditor contained all of the elements necessary to give rise to a legal obligation — ‘a right to payment’ — under the relevant non-bankruptcy law.” Id., 53 F.3d at 497 (quoting In re National Gypsum Co., 139 B.R. 397, 405 (N.D.Tex.1992)) (internal quotation marks omitted). Under contract law, a right to payment based" }, { "docid": "2061995", "title": "", "text": "Olin operated the Plant 94 site for wood preserving operations immediately prior to the execution of the first indemnification agreement. These wood preserving activities produced the hazardous substances for which the Louisiana Department of Environmental Quality now seeks clean-up under LEQA. Second, the terms of the indemnification agreements were so broad as to encompass all types of future liability, signaling that the parties actually or presumedly contemplated possible environmental liability and Lability arising from statutes enacted in the future. A “claim” may exist even where, as in this case, the parties lack complete knowledge about the scope of its potential liability. See LTV Corp. (In re Chateaugay Corp.), 944 F.2d at 1004-05. Thus, the fact that Olin did not know the specific parameters of its liability does not place that liability outside of the definition of “claim” but rather is precisely what made the claim contingent. Under this specific combination of circumstances, we find that future environmental liability was actually or presumedly contemplated by the parties upon their signing of the indemnification agreements and constitutes a valid contingent claim. We also agree with the bankruptcy and district courts that Olin’s claims arose pre-petition. Here, the relationship between the parties was created upon the signing of the indemnity agreements in 1967 and 1974. See Houbigant Inc. (In re Houbigant, Inc.), 188 B.R. at 358-59. The indemnity agreements provided that Olinkraft would indemnify Olin upon the happening of a future event giving rise to liability against Olin from its forest products division. The fact that the contingency in this case — the environmental liability claim against Olin — materialized post-petition does not transmogrify the claim into a post-petition claim, but merely means that the contingent claim moved closer to becoming liquidated upon the happening of that contingency. See In re Chateau-gay Corp., 102 B.R. 335, 352 (Bankr. S.D.N.Y.1989). Like the lower courts in this case, we reject Olin’s arguments predicated on cases which held that a claim flowing directly from a statute enacted post-petition is not discharged by confirmation even if based upon pre-petition acts. See, e.g., LTV Steel Co. (In re" }, { "docid": "3008788", "title": "", "text": "Manville Forest Products Corp.), 209 F.3d 125 (2d Cir.2000), is not to the contrary. In Olin, the parties signed a pre-petition indemnification agreement whereby the debtor agreed to indemnify Olin for liabilities later incurred. See id. at 126-27. After confirmation of the Plan, a statute was enacted creating liability on the part of Olin for the clean-up of contaminated property. Olin thereafter requested indemnification from the debtor pursuant to the indemnification agreement. See id. at 126-27. The Court held that Olin's claims under the indemnification agreement arose pre-petition because “Olin brought a contract cause of action based on a pre-petition contract, not a statutory claim for indemnification under a statute enacted [after] confirmation.” Id. at 130. The Court specifically distinguished \"cases which held that a claim flowing directly from a statute enacted post-petition is not discharged by confirmation even if based upon pre-petition acts.” Id. at 129-30 (citing, inter alia, Chateaugay II, 53 F.3d at 497). . We are assuming that these CERCLA claims arose on the date of enactment only for purposes of determining whether claims arising during the reorganization, in addition to those claims arising pre-petition, were discharged in Duplan's bankruptcy proceeding. Nothing in this opinion precludes a finding that these CERCLA claims actually arose after the date of enactment and after the close of Duplan’s bankruptcy proceeding." }, { "docid": "8017440", "title": "", "text": "E.g., Fogel v. Zell, 221 F.3d 955, 960 (7th Cir.2000); In re Chateaugay Corp., 944 F.2d 997, 1004-05 (2d Cir.1991); Schweitzer v. Consol. Rail Corp., 758 F.2d 936, 943 (3d Cir.1985). But see Epstein v. Official Comm, of Unsecured Creditors (In re Piper Aircraft, Corp.), 58 F.3d 1573, 1576-77 (11th Cir.1995) (product liability claims may exist without injury to claimant based on pre-petition relationship and prepetition conduct of debtor). When dealing with claims for damages under statutes such as the federal environmental statutes, courts generally look at whether the claimant could have fairly contemplated a claim based on pre-discharge conditions or conduct. See In re Jensen, 995 F.2d at 930; see also AM Int’l, Inc. v. Datacard Corp., 106 F.3d 1342, 1348 (7th Cir.1997) (CERC-LA claim not discharged where company had no knowledge of environmental contamination prior to its bankruptcy); In re Chi., Milwaukee, St. Paul & Pac. R.R. Co., 974 F.2d at 787 (CERCLA claim discharged when claimant knew it would incur response costs before discharge order became effective); In re Chateaugay Corp., 944 F.2d at 1005-07; In re Nat’l Gypsum Co., 139 B.R. 397, 407-09 (N.D.Tex.1992). Courts have also applied a “fair contemplation” test to determine whether a claim exists for breach of contract. E.g., Pearl-Phil GMT (Far East) Ltd. v. The Caldor Corp., 266 B.R. 575, 580-82 (S.D.N.Y.2001); In re CD Realty Partners, 205 B.R. at 656; In re Russell, 193 B.R. 568, 571 (Bankr.S.D.Cal.1996). However, a number of courts have held or at least suggested that a party to an ordinary contract should reasonably anticipate that the other party will breach or has made misrepresentations with respect to the contract, whether or not it was aware of any breach or misrepresentation when the petition was filed or before the claims bar date. They conclude that a contingent claim arises at the time of contracting, not at the time of a subsequent breach. E.g., Pearl-Phil GMT (Far East) Ltd., 266 B.R. at 580-82 (contingent claim for breach of contract arose when purchase orders with debtor executed post-petition; possibility of future breach was within the presumed contemplation of" }, { "docid": "16682686", "title": "", "text": "B.R. 584, 588 (Bankr.S.D.N.Y.), aff'd, 32 B.R. 725 (S.D.N.Y.1983). In these very same Chapter 11 cases, the issue as to whether a creditor is entitled to administrative status has arisen in several different contexts. For example, in another District Court decision, In re Chateaugay Corp., 112 B.R. 513 (S.D.N.Y.1990), Judge Sprizzo categorized the cases which usually arise in this context as involving either (1) a contractual relationship between the debtor and those who might or might not sue him in the future based upon future events within the reasonable ambit of that contractual relationship; or (2) the commission of a tort by the debtor that could lead to some future injury and a consequent decision of the injured party to seek legal redress against the debt- or. Id. at 520. The District Court, noting that although ERISA claims would fall within the first category, found that the liabilities imposed by the environmental statutes at issue did not fit neatly within those parameters. The court rejected the government’s argument that “any cause of action fully arises only after a review has been made, a remedy chosen, and costs incurred” {id. at 522.) and found that it was irrelevant when the claim for relief “may be in all respects ripe for adjudication”. Id. at 522. Instead, Judge Sprizzo focused on whether there had been a pre-petition triggering event in determining whether a claim arose pre- or post-petition. Id. at 521-22. See also, In re Chateaugay Corp., 102 B.R. at 351 (this Court held that claims arising from pre-pe-tition tax benefit transfer agreements are pre-petition in nature and not entitled to an administrative priority based upon a post-petition disqualifying event). Consequently, in this situation, although the administrative action did not occur until post-petition, the so-called “triggering event” is not the termination of the plans by the PBGC, but rather the pre-petition labor of LTV Steel’s employees. “Where the debtors’ obligations stem from contractual liability, even a post-petition breach will be treated as giving rise to a prepetition liability where the contract was executed prepetition.” In re Chateaugay Corp., 87 B.R. at 796. See" }, { "docid": "14967317", "title": "", "text": "of contingency claims. Namely, depending on whether'the claim is based on tort, statute or contract, the results of any determination of when that claim arose may differ significantly. See In re Chateaugay Corp. (United States v. LTV Corp.), 944 F.2d 997, 1004-05 (2d Cir.1991) (“LTV”) (discussing the difference between contingent tort claims and contingent contract claims); In re Water Valley Finishing, Inc. (Big Yank Corp. v. Liberty Mutual Fire Ins. Co.), 139 F.3d 325, 328 (2d Cir.1998) (reversing district court’s finding that claim for attorneys’ fees was discharged because the Second Circuit found that such claim was not based on a contract but imposed by the court). Based on the potential difference in claim accrual date, a determination of the type of potential claim Olin had arising out of the Indemnity Agreements is a threshold issue. Olin bases its right to payment in these proceedings on pre-petition indemnity agreements. The legal relationship which created Olin’s alleged present right to indemnity is a pre-petition contract. The derivation of liability and focus of these proceedings is whether any obligation remains on pre-petition indemnity agreements. Therefore, this court will determine whether Olin had a prepetition claim in terms of whether the Indemnity Agreements created a contractual claim that was discharged by confirmation. In LTV, the Second Circuit stated that “[i]n the context of contract claims, the Code’s inclusion of ‘unmatured’ and ‘contingent’ claims is usually said to refer to obligations that will become due upon the happening of a future event that was ‘within the actual or presumed contemplation of the parties at the time the original relationship was created.’ ” LTV, 944 F.2d at 1004 (quoting In re All Media Properties, Inc., 5 B.R. 126, 133 (Bankr.S.D.Tex.1980), aff'd mem., 646 F.2d 193 (5th Cir.1981)). LTV provides a bright fine test for determining whether a contractual contingency claim accrued. Was this a pre-petition obligation of the Debtor that will become due upon the happening of some future event? Was the future event within the actual or presumed contemplation of the parties at the time the original relationship was created? The LTV test by" }, { "docid": "2061989", "title": "", "text": "be treated as arising directly under LEQA and decided instead that the claims arose under contract. In determining that Olin’s indemnification claims had arisen pre-petition, the bankruptcy court noted that the legal relationship between Olin and Riverwood was created when the indemnification agreements were executed, and those agreements contained all of the necessary elements to give rise to a right of payment at that time. The court also observed that a contingent claim arises upon the execution of a contract when the occurrence of the contingent event triggering indemnification was contemplated by the parties at or before execution. The bankruptcy court determined that the broad language of the indemnification agreements indicated that' future environmental cleanup liability was contemplated by the parties. Olin appealed the bankruptcy court’s decision. In an order dated April 23, 1999, the district court affirmed the opinion of the bankruptcy court, adopting the rationale of the bankruptcy court. On May 20, 1999, Olin filed a timely appeal of the district court’s decision. DISCUSSION Our review of the district court’s decision is plenary. See United States Lines (S.A.), Inc. v. United States (In re McLean Indus. Inc.), 30 F.3d 385, 387 (2d Cir.1994). We must “independently examine the bankruptcy court’s decision, applying the clearly erroneous standard to findings of fact and de novo review to conclusions of law.” Id. (quoting Klein v. Civale & Trovato, Inc. (In re The Lionel Corp.), 29 F.3d 88, 89 (2d Cir.1994)) (internal quotation marks omitted). Because the facts of the case are not in dispute, we review the decision de novo. The Bankruptcy Code provides that confirmation of a reorganization plan discharges the debtor from any debt that arose before the date of the confirmation, regardless of whether proof of the debt is filed, the claim is disallowed, or the plan is accepted by the holder of the claim. See 11 U.S.C. § 1141(d)(1) (1993). A valid prepetition claim requires two elements. See LTV Steel Co. v. Shalala (In re Chateaugay Corp.), 53 F.3d 478, 497 (2d Cir.1995). First, the claimant must possess a right to payment. Second, that right must have" }, { "docid": "14662139", "title": "", "text": "continue to do business with it when the bankruptcy filing might otherwise make them reluctant to do so.” Frito-Lay, Inc. v. LTV Steel Co., Inc. (In re Chateaugay Corp.), 10 F.3d 944, 954-55 (2d Cir.1993) (internal quotations omitted); see In re Ionosphere, 85 F.3d at 998-99 (“A bankruptcy debtor ... is allowed ... to assume an executory contract ... and thereby prevent the other contracting party from terminating the contract.”). A party injured by a debtor’s rejection of an executo-ry contract “is permitted to file a claim for damages occasioned by the breach under 11 U.S.C. § 502(g).” In re Sun City, 89 B.R. at 248. Here, Towers’ plan of reorganization was confirmed on December 8, 1994. Defs. Exh. 114. In advance of this confirmation, and, indeed, before the commencement of Towers’ bankruptcy proceedings, Hunt Health materially breached the agreements between the parties by terminating early without paying early termination damages, and by keeping payments made on accounts receivable purchased by Towers. These material breaches relieved Towers of its obligations remaining under the contract. Towers, therefore, owed Hunt Health no continuing performance obligations at the time it entered bankruptcy. The objectives of rejection — to relieve the debtor of burdensome obligations while permitting the creditor to relate its claim back to pre-petition — could not be met even had Towers’ rejected the HCP Contract, because all that remained of the agreement at the time of bankruptcy was Towers’ claims for the repayment of its advances and unpaid factoring fees. The HCP Contract, in other words, did not burden Towers upon its entry into bankruptcy. Moreover its rejection, at that late date, would not have caused a breach upon which Hunt Health could have made a claim. The agreements between the parties, therefore, were not executory. Defendants’ affirmative defense of execu-tory contract does not bar plaintiffs recovery. In summary, plaintiff prevails on his breach of contract claim by a preponderance of the evidence, and none of the defenses put forward by defendants apply to bar any or all recovery. Before taking up the remaining claims below, the Court pauses to observe" }, { "docid": "13944887", "title": "", "text": "Corp. v. LTV., 875 F.2d 1008 (2d Cir.1989). The District Court found as follows: [consistent with the goals of uniform treatment for creditors and a fresh start for debtors, courts have determined when a claim arises for Code purposes by focusing upon ‘the time when the acts giving rise to the alleged liability were performed,’ since only reference to pre-petition acts of the debtor will result in treating liabilities flowing from such acts in an equitable fashion. Id. at 796 (citing Manville I, 57 B.R. at 690); accord Grady v. A.H. Robins Co., Inc., 839 F.2d 198, 202 (4th Cir.1988), cert. dismissed sub nom, Joynes v. A.H. Robins Co., Inc., — U.S. -, 109 S.Ct. 201, 101 L.Ed.2d 972 (1988); In re Edge, 60 B.R. 690, 699 (Bankr.M.D.Tenn.1986). The District Court also held that when a claim arises is determined by bankruptcy law in the absence of an overriding non-bankruptcy federal policy or interest. In re Chateaugay Corp., 87 B.R. at 796. Moreover, and critical to this Court’s determination of the pending matter is the District Court’s holding that “[w]here the debtors’ obligations stem from contractual liability, even a post-petition breach will be treated as giving rise to a prepetition liability where the contract was executed prepetition.” Id. A case which is directly on point on this issue is In re THC Fin. Corp., 686 F.2d 799 (9th Cir.1982), in which a creditor sought to assert its indemnification claim as a priority expense of administration. The agreement in question was executed prior to the debtor’s bankruptcy filing. However, the Bankruptcy Court determined that even though the creditor’s indemnification claim matured post-petition, the claim nevertheless existed as a contingent claim as of the date the underlying indemnity agreement was executed. On appeal, the creditor argued that its claim under the indemnification agreement did not materialize until after the debtor’s bankruptcy proceeding commenced and as a result, its claim should be afforded priority administrative expense status. The Ninth Circuit disagreed and held that the creditor’s claim arose at the time the parties’ entered into the indemnification agreement. Id. at 802. In support" }, { "docid": "16682689", "title": "", "text": "Circuit held that a claim for contribution or indemnification arose under state law, not when the claimant provided pre-petition services to the debtor, but post-petition, when the claimant paid a judgment and accrued a right to seek payment. The court then concluded that state law controlled the determination of when the claim arose, id. at 337, refusing to find that the clear Congressional intent served by the breadth of the term “claim” in the Code should prevail over state law. See, In re Chateaugay Corp., 102 B.R. at 352. This Court again rejects the Frenville analysis “because it ignores congressional intent to define ‘claim’ broadly ... [and] [t]o that extent it distorts the underlying policies of the Code in equating a claim with a cause of action for indemnity or contribution under state law notwithstanding the clear pre-petition rooting of the right to payment being sought.” In re Johns-Manville, 57 B.R. at 690; see also, In re Chateaugay Corp., 102 B.R. at 352. In this case, the pension benefits were provided to and accrued by employees of LTV Steel for labor performed, for the most part, prior to the Filing Date. Consequently, any claims arising from LTV Steel’s obligation to pay into the pension fund plans are pre-petition debts. The PBGC held a contingent claim against LTV from the time that the pre-petition labor of LTV Steel’s employees caused the accrual of claims by them for pension benefits. PBGC v. LTV Corp., 875 F.2d at 1019; In re Chateaugay Corp., 87 B.R. at 797. A contingent claim has been described as one in which “the debtor’s legal duty to pay does not come into existence until triggered by the occurrence of a future event and such future occurrence was within the actual or presumed contemplation of the parties at the time the original relationship of the parties was created.” In re Chateaugay Corp., supra, at 520 (quoting In re All Media Properties, Inc., 5 B.R. 126, 133 (Bankr.S.D.Tex.1980), aff'd, 646 F.2d 193 (5th Cir.1981)); accord In re Crescenzi, 53 B.R. 374, 380 (Bankr.S.D.N.Y.1985), aff'd, 69 B.R. 64 (S.D.N.Y.1986). The PBGC’s" }, { "docid": "22477948", "title": "", "text": "on conduct resulting in release or threatened release of hazardous substances as the relevant point in time for determining whether a claim has arisen for the purposes of bankruptcy. An obligation to pay the EPA for response costs is a dischargeable claim whenever based upon a pre-petition conduct resulting in release or threatened release of hazardous substances. See id. at 1005. In so finding, the court in Chateaugay refused to recognize as claims, response costs based simply on debtor’s pre-petition conduct, as opposed to conduct resulting in release or threatened release of hazardous substances pre-petition. See id. at 1000, 1005. As a result of this distinction, the court found that the placing of hazardous substances in sealed containers pre-petition, followed by release of the substances into the environment years after confirmation, is not a claim. See id. In determining what treatment to accord future CERCLA costs, the court in Cha-teaugay drew on the treatment of contract cases in bankruptcy, while recognizing that, Though there does not yet exist between EPA and [debtor] the degree of relationship between claimant and debtor typical of an existing though unmatured contract claim, the relationship is far closer than that existing between future tort claimants totally unaware of injury and a tort-feasor. EPA is acutely aware of LTV and vice versa. Id. at 1005. The court finally noted that, [i]n the context of contract claims, the Code’s inclusion of “unmatured” and “contingent” claims is usually said to refer to obligations that will become due upon the happening of a future event that was “within the actual or presumed contemplation of the parties at the time the original relationship between the parties was created. ” Id. at 1004 (citing In re All Media Properties Inc., 5 B.R. 126, 133 (Bankr.S.D.Tex.1980), aff'd mem., 646 F.2d 193 (5th Cir.1981)) (emphasis added). In the final analysis, however, the court in Chateaugay appears to part from the contractual standard it earlier had aligned itself with by adopting so broad a definition of claim so as to encompass costs that could not “fairly ” have been contemplated by the EPA or" }, { "docid": "13944889", "title": "", "text": "of its holding the Court stated as follows: We have little guidance in determining whether ... [the] indemnification claim existed as a contingent claim in 1976 or did not arise until some later date. But the cases which have been decided, together with the structure and purpose of the Bankruptcy Act [and Bankruptcy Code], suggest that any doubts should be resolved in favor of finding a contingent claim existed [as of the date of execution]. Id. In re Remington Rand Corp., 836 F.2d 825 (3rd Cir.1988), the Third Circuit held that in bankruptcy the existence of a valid claim and, in turn, the obligation to assert such a claim prior to the bar date, depends on “(1) whether the claimant possessed a right to payment; and (2) when that right arose.” Id. at 830. (citing In re M. Frenville Co., Inc., 744 F.2d 332, 336 (3rd Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985). Applying these principles to an ordinary contract indemnity scenario, the Third Circuit stated in dicta that “an indemnity or surety agreement creates a right to payment, albeit contingent, between the contracting parties immediately upon the signing of the agreement.” In re Remington Rand, 836 F.2d at 830. Based upon the aforementioned case-law, this Court holds that the Frito-Lay Indemnity Loss claims pursuant to the Frito-Lay TBT Agreements which were entered into and executed prior to the filing date are clearly pre-petition claims. The fact that the Indemnity Loss claims remain contingent until the occurrence of a triggering or disqualifying event or termination of such agreements is not controlling. Once the contingency occurs, even if it occurs post-petition, “the contingent claim simply becomes a liquidated one; it, however, is not thereby elevated to the status of a post-petition claim.” In re Chateaugay Corp., 87 B.R. at 797; see also, In re Amfesco Indus., Inc., 81 B.R. 777 (Bankr.E.D.N.Y. 1988) (indemnity claims triggered post-petition are still pre-petition claims and are not entitled to administrative expense priority). Further, the Frito-Lay Indemnity Loss claims which arise as a result of post-confirmation triggering or disqualifying events," }, { "docid": "2061993", "title": "", "text": "a contract claim, such as the case here, we have said that contingent claims refer “to obligations that will become due upon the happening of a future event that was within the actual or presumed contemplation of the parties at the time the original relationship between the parties was created.” LTV Corp. (In re Chateaugay Corp.), 944 F.2d at 1004 (internal quotation marks omitted). Even if Olin’s indemnification rights constitute rights to payment under the Bankruptcy Code, those rights will be considered discharged only if they arose before the filing of the petition. See LTV Steel Co. (In re Chateaugay Corp.), 53 F.3d at 497. A claim will be deemed to have arisen pre-petition if “the relationship between the debtor and the creditor contained all of the elements necessary to give rise to a legal obligation — ‘a right to payment’ — under the relevant non-bankruptcy law.” Id., 53 F.3d at 497 (quoting In re National Gypsum Co., 139 B.R. 397, 405 (N.D.Tex.1992)) (internal quotation marks omitted). Under contract law, a right to payment based on a written indemnification contract arises at the time, the indemnification agreement is executed. See Houbigant, Inc. v. ABC Mercantile, Inc. (In re Houbigant, Inc.), 188 ,B.R. 347, 358-59 (Bankr.S.D.N.Y.1995) (“[A] contractual indemnification claim exists as a contingent claim against the indemnitor as of the date the indemnification agreement is executed.”); see also Woburn Assocs. v. Kahn (In re Hemingway Transport, Inc.), 954 F.2d 1, 9 n. 9 (1st Cir.1992) (“When parties agree in advance that one party will indemnify the other party in the event of a certain occurrence, there exists a right to payment, albeit contingent, upon the signing of the agreement.”) (quoting Avellino & Bienes v. M. Frenville Co. (In re M. Frenville Co.), 744 F.2d 332, 336 (3d Cir.1984)) (emphasis in original) (internal quotation marks omitted). We agree \"with the bankruptcy and district courts that Olin possessed a valid contingent claim at the time that River-wood filed for bankruptcy. We find that environmental clean-up liability was contemplated by the parties upon the signing of the indemnity agreements for two reasons. First," }, { "docid": "12698091", "title": "", "text": "New Jersey courts have typically applied the discovery rule to delay commencement of a statute of limitations for a tort victim. In order to take advantage of the discovery rule, a party must have exercised “due diligence” in investigating the alleged wrongdoing. The “polestar” of the discovery rule is not the plaintiffs actual knowledge, but rather “whether the knowledge was known, or through the exercise of diligence, knowable to [the party].” Debiec v. Cabot Corp., 352 F.3d 117, 129 (3rd Cir.2003). The burden of proof rests with the party claiming the benefit of the rule. Id., at 129. The discovery rule fashioned by the New Jersey courts to ameliorate the harsh effects of a statute of limitations on unwilling tort victims has no impact on the Bankruptcy Code’s discharge of contract claims in light of Congress’ broad definition of a claim. Parties to a contact know the terms of their agreement and any subsequent breach is obvious. As such, the discovery rule generally does not apply to contract actions. Morris v. Fauver, 153 N.J. 80, 110, 707 A.2d 958 (N.J.Sup.Ct.1998). See also The Reading Co. v. Philadelphia, 155 B.R. 890 (E.D.Pa.1993) aff'd 107 F.3d 8 (3d Cir.1997)(citing Radio-Keith-Orpheum, and noting that one who contracts with a debtor prior to bankruptcy cannot avoid the consequences of bankruptcy because he bargains for a legal relationship). See also In re Chateaugay Corp., 944 F.2d 997, 1005 (2d Cir.1991) (noting that the relationship between a claimant and a debtor through an unma-tured contract claim is far closer than that between future tort claimants unaware of injury and the tortfeasor); In re Chateaugay, 87 B.R. 779, 797 (S.D.N.Y.1988), aff'd, 875 F.2d 1008 (2nd Cir.1989), rev’d on other grounds, 496 U.S. 633, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (“The fact that the [creditor] may not proceed against [the debtor] on it’s contingent claims until termination occurs does not distinguish pension liability from any other contingent claims that are triggered by a post-petition event. Termination alone could not convert the [creditor’s] contingent pre petition claim into post petition claims.”). The cause of action accrued in this" }, { "docid": "13752518", "title": "", "text": "In re Chateaugay Corp., 102 B.R. at 351-52 (contingent indemnity loss claims arising from pre-petition agreement are pre-petition claims). See also In re Remington Rand Corp., 836 F.2d 825, 830 (3d Cir.1988) (stating in dicta that an indemnity agreement creates a contingent right to payment between the contracting parties on signing the agreement). Because the ACB License Agreement was executed pre-petition, any claim arising out of ACB’s contractual right to indemnification is a pre-petition unsecured claim. ACB knew or should have known that as of the Filing Date it held a contingent indemnification claim. It has not alleged any facts in its counterclaims which, if true, would establish “excusable neglect” for its failure timely to file that claim. Its claim for contractual indemnification is time-barred. As noted, the license agreement has not been assumed by Houbigant. Accordingly, ACB misplaces its reliance on In re New York Trap Rock Corp., 137 B.R. 568 (Bankr.S.D.N.Y.1992). In re Heck’s Properties, Inc., 151 B.R. 739, 767-68 (S.D.W.Va.1992) is inapposite because the officers and directors who were granted administrative priority indemnification claims were hired post-petition by the debtor in possession. Conclusion Based on the foregoing, Houbigant’s motion for judgment on the pleadings dismissing the counterclaims on the basis of administrative time bars is granted in part and denied in part. SETTLE ORDER. . In In re Vecchio, 20 F.3d 555 (2d Cir.1994), the. Second Circuit held that in a chapter 7 case, a § 507(a)(7) priority claim asserted on behalf of the Internal Revenue Service would be accorded first-tier distribution under § 726(a)(1) of the Code, even though the claim was not timely filed. The court rejected a determination by the district and bankruptcy courts that the claim should be treated as a general unsecured claim under § 726(a)(3) of the Code. In doing so, it invalidated Bankruptcy Rule 3002 to the extent it is inconsistent with the text of §§ 726, 502 and 501 of the Code. Id. at 559. Vecchio was decided prior to the 1994 Bankruptcy Code amendments and this case predates those amendments. The decision is inapposite because this is not" }, { "docid": "14967318", "title": "", "text": "any obligation remains on pre-petition indemnity agreements. Therefore, this court will determine whether Olin had a prepetition claim in terms of whether the Indemnity Agreements created a contractual claim that was discharged by confirmation. In LTV, the Second Circuit stated that “[i]n the context of contract claims, the Code’s inclusion of ‘unmatured’ and ‘contingent’ claims is usually said to refer to obligations that will become due upon the happening of a future event that was ‘within the actual or presumed contemplation of the parties at the time the original relationship was created.’ ” LTV, 944 F.2d at 1004 (quoting In re All Media Properties, Inc., 5 B.R. 126, 133 (Bankr.S.D.Tex.1980), aff'd mem., 646 F.2d 193 (5th Cir.1981)). LTV provides a bright fine test for determining whether a contractual contingency claim accrued. Was this a pre-petition obligation of the Debtor that will become due upon the happening of some future event? Was the future event within the actual or presumed contemplation of the parties at the time the original relationship was created? The LTV test by its terms and other similar scrutiny will generally define obligations arising from pre-petition indemnity agreements as pre-petition claims. See Houbigant, Inc. (ACB Mercantile, Inc. v. Houbigant, Inc.), 188 B.R. 347, 358 (Bankr.S.D.N.Y.1995); In re New York Trap Rock Corp., 137 B.R. 568, 573 (Bankr.S.D.N.Y.1992); In re Chateaugay Corp., 102 B.R. 335, 352 (Bankr.S.D.N.Y.1989) (“Chateaugay ”). See also In re Hemingway Transport, Inc. (Woburn Assocs. v. Kahn), 954 F.2d 1 (1st Cir.1992); In re THC Fin. Corp., 686 F.2d 799 (9th Cir.1982). Indemnity agreements are intended to establish contingent future obligations immediately upon execution. Whether a future event triggers such obligation is a function of the scope of the agreement as governed by the intent of the parties when entering into such agreement. The Indemnity Agreements undoubtedly created obligations that may become due upon the happening of a future event. Also, it is clear from the breadth of the language in the Indemnity Agreements that indemnification for future environmental cleanup liability was within the actual or presumed contemplation of Olin and Olinkraft at the time the" } ]

[ { "docid": "22751305", "title": "", "text": "at all. We do not, however, resolve the question of whether the burglary conviction was “tainted.” The length of that sentence is presently a matter in dispute, see n. 1, supra. Grant v. Astle, 2 Doug. 722, 99 Eng. Rep. 459 (1781); Peake v. Oldham, 1 Cowp. 275, 98 Eng. Rep. 1083 (1775); Rex v. Benfield, 2 Burr. 980, 97 Eng. Rep. 664 (1760). Street v. New York, 394 U. S. 576, 579-580, n. 3 (1969); Carafas v. LaVallee, 391 U. S. 234, 237-238 (1968); Ginsberg v. New York, 390 U. S. 629, 633-634, n. 2 (1968). The majority rule is, apparently, that all convictions handed down at the same time count as a single conviction for the purpose of habitual offender statutes, but a few States follow the stricter rule described in the text. The relevant cases are collected at 24 A. L. R. 2d 1262-1267 (1952), and in the accompanying supplements. In Sibron we noted the inadequacies of a procedure which postpones appellate review until it is proposed to subject the convicted person to collateral consequences. 392 U. S., at 56-57. For the reasons there stated, an attempt to impose collateral consequences after an initial refusal to review a conviction on direct appeal because of the concurrent sentence doctrine may well raise some constitutional problems. That issue is not, however, presented by this case, and accordingly we express no opinion on it. Compare Meade v. State, 198 Md. 489, 84 A. 2d 892 (1951), with Marks v. State, 230 Md. 108, 185 A. 2d 909 (1962). See n. 7, supra. See n. 1, supra, and Part V, infra. A stronger ease for total abolition of the concurrent sentence doctrine may well be made in cases on direct appeal, as compared to convictions attacked collaterally by suits for post-conviction relief. Because of our disposition of this case, we need not reach this question. Quoting from Ohio ex rel. Eaton v. Price, 364 U. S. 263, 275 (1960) (opinion of BrennaN, J.). A list of those Bill of Rights guarantees which have been held “incorporated” in the Fourteenth Amendment can" } ]

[ { "docid": "15162644", "title": "", "text": "See Phillip H. Schott, 29 FCC 2d 35, 36 (1971). The Commission’s opinion denying renewal of WXUR’s license rested primarily on the station’s fairness doctrine violations and stated that fairness violations alone would be sufficient to deny license renewal. On appeal the FCC’s fairness ruling was upheld by Judge Tamm. It was not passed upon by. Judge Wright, who upheld the FCC on the ground of licensee’s misrepresentation, a ground also approved by Judge Tamm. See Brandywine-Main Line Radio, Inc., 27 FCC 2d 565, 577 (1971), aff’d on other grounds, 153 U.S.App.D.C. 305, 473 F.2d 16, cert. denied, 412 U.S. 992, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973). The Supreme Court’s observation in its CBS opinion clearly indicates that the challenged FCC ruling may have “a substantial adverse effect” on NBC. The Court noted that “[fjailure [to comply with the fairness doctrine] puts continuation of the license at risk — a sanction of tremendous potency, and one which the Commission is under increasing pressure to employ.” Columbia Broadcasting System, Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 100, 93 S.Ct. 2080, 2085, 36 L.Ed.2d 772 (1973), quoting Business Executives’ Move for Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 205, 450 F.2d 642, 666 (1971) (McGowan, J., dissenting). . For decisions that criminal cases remain alive after the sentence in question has been served because of the debilitating collateral effects of a criminal conviction, see, e. g., Sibron v. New York, 392 U.S. 40, 55-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 237, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Ginsberg v. New York, 390 U.S. 629, 633 n. 2, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). The doctrine has been extended to include challenges to arrests which do not lead to prosecutions in view of the potential consequences of an arrest record. See, e. g., Carlson v. Schlesinger, 168 U.S.App.D.C. -, 511 F.2d 1327, 1338 (D.C.Cir., 1975); Sullivan v. Murphy, 156 U.S.App.D.C. 28, 52, 478 F.2d 938, 962, cert. denied, 414 U.S. 880, 94 S.Ct 162, 38 L.Ed.2d 125 (1973). This court has adopted" }, { "docid": "14670382", "title": "", "text": "other grounds, 358 U.S. 326, 79 S.Ct. 340, 3 L.Ed.2d 340 (1959). . See United States v. Casson, 140 U.S. App.D.C. 141, 434 F.2d 415 (1970) ; Coleman v. United States, 137 U.S.App. D.C. 48, 420 F.2d 616 (1969); Bryant v. United States, 135 U.S.App.D.C. 138, 417 F.2d 555 (1969). Other circuits have done likewise. See, e. g., United States v. McKenzie, 414 F.2d 808 (3d Cir. 1969); Jones v. United States, 396 F.2d 66 (8th Cir. 1968); Holland v. United States, 384 F.2d 370 (5th Cir. 1967); Hibdon v. United States, 204 F.2d 834 (6th Cir. 1953). . See, e. g., Benton v. Maryland, 395 U.S. 784, 790-791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Street v. New York, 394 U.S. 576, 579-580 n. 3, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Sibron v. New York, 392 U.S. 40, 50-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ; Carafas v. LaVallee, 391 U.S. 234, 237-238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Ginsberg v. New York, 390 U.S. 629, 633-634 n. 2, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). See generally D.C.Code § 22-104 (1967); D.C. Court Reform Act, Pub.L. 91-358, § 201 (b), U.S.Code Cong. & Ad.News 2660 (1970). The issue here being considered involves the propriety of multiple convictions. This issue is distinguishable from the issue of the propriety of multiple sentences when multiple convictions are permissible. See Fuller v. United States, 132 U.S.App.D.C. 264, 289, 407 F.2d 1199, 1124 (en banc, 1968) ; Irby v. United States, 129 U.S.App.D.C. 17, 390 F.2d 432 (en banc, 1967). . Notes 1 and 2, supra. . Notes 3 and 4, supra. . D.C.Code § 4-120 (1967) provides: The provisions of the several laws and regulations within the District of Columbia for the protection of public or private property and the preservation of peace and order are extended to all public buildings and public grounds belonging to the United States within the District of Columbia. However, the District of Columbia statutes might be applicable without the enabling act. Whittlesey v. United States, 221 A.2d 86, 89 (D.C.App.1966) ; cf. Kelly" }, { "docid": "1966418", "title": "", "text": "a hearing on revocation of his parole, under the present statutory scheme, the date of the termination of sentence would not be extended. Hence, the defendant would receive free time pending his revocation hearing. The judgment of the District Court is vacated and the case remanded with instructions to dismiss the petition as moot. . There is no longer any question that a petition for a writ of habeas corpus is proper under the Habeas Corpus Act, 28 U.S.C. §§ 2241-55 (1964), despite the unconditional release of appellant from custody. As long as the petitioner was in custody at the time the petition was filed in the district court, jurisdiction continues and the court can “dispose of the matter as law and justice require.” 28 U.S.C. § 2243 (1964). Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), overruling Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960). . See Sibron v. New York, supra; Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 244, 91 L.Ed. 196 (1946); Comment, Mootness and Collateral Consequences in Criminal Appeals, 28 U.Chi.L.Rev. 363 (1961); Annot., 9 A.L.R.3d 462 (1966). . This is also true of Boxley v. Rodgers, 129 U.S.App.D.C. 408, 395 F.2d 631 (1968), relied upon by appellant. . Appellant also argues that the cases of Boise City Irr. & Land Co. v. Clark, 131 F. 415 (9th Cir. 1904), and Gay Union Corp. v. Wallace, supra, establish the proposition that a case will not be dismissed as moot where a decision on the merits might provide guidance to a governmental agency in a similar subsequent situation. It is clear, however, that these cases are merely applications of the recurring controversy doctrine and therefore provide no additional support for appellant. In Boise City the court was faced with a challenge to the" }, { "docid": "16689944", "title": "", "text": ". Baxter pled guilty in 1959 to an attempted robbery charge and in 1960 to burglary and grand larceny in addition to the crimes discussed above. . Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968). These include, for example, the use of the conviction for impeachment purposes, id.; for enhancement purposes under habitual offender statutes, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); by a parole board in determining a prisoner’s severity rating and hence his term of incarceration, United States v. Rubin, 591 F.2d 278 (5th Cir.) (on remand), cert. denied, — U.S. —, 100 S.Ct. 133, 62 L.Ed.2d 87 (1979); in disciplinary proceedings by an employer, Street v. New York, 394 U.S. 576, 579 n. 3, 89 S.Ct. 1354, 1359 n. 3, 22 L.Ed.2d 572 (1969); under state statutes to render him ineligible to vote, serve as a juror, or be elected to labor union office, Carafas v. LaVallee, 391 U.S. 234, 237, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968). . The State asserts that this presumption has never been applied to the statute under which Baxter was convicted but only to its predecessor. Because of our disposition of this issue, we do not consider that contention. . The district court declined to rule on the merits of this claim, holding that in light of Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), Baxter’s guilty plea waived any challenge to the presumption. Because lack of standing is logically antecedent to a consideration of waiver, we do not consider the application of Tollett to this case. WARREN L. JONES, Circuit Judge, dissenting: Among his claims the appellant attacks the prison disciplinary proceeding on the ground that he was unable to exercise his right to appeal because he was held in solitary confinement after the hearing, lacking both knowledge of his right to appeal and writing materials with which to draft his appeal. The majority rejects this claim because state administrative remedies were not exhausted by an appeal to the Director" }, { "docid": "7791449", "title": "", "text": "under 18 U.S.C. § 2113(d). Accordingly, Grimes’ convictions under § 924(c) are vacated. Accord: United States v. Nelson, 574 F.2d 277, 280-81 (5th Cir. 1978), cert. denied, 439 U.S. 956, 99 S.Ct. 355, 58 L.Ed.2d 347 (1978). Conclusion Grimes’ convictions under § 2113(a) are deemed merged into his convictions under § 2113(d), and the separate judgments of conviction entered under § 2113(a) are vacated; his convictions under § 924(c)(1) are vacated; his convictions under § 2113(d), and the concurrent sentences of twelve years’ imprisonment imposed thereon, stand. Affirmed in part and reversed in part. . The reasoning behind this line of cases, quite plainly, is that merely to stand “convicted” is to be subjected to a great many “collateral consequences.” See Benton v. Maryland, 395 U.S. 784, 790, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Parker v. Ellis, 362 U.S. 574, 593-94, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960) (Warren, C. J., dissenting). See also Wright v. United States, 519 F.2d 13, 19-20 (7th Cir.), cert. denied, 423 U.S. 932, 96 S.Ct. 285, 46 L.Ed.2d 262 (1975); O’Clair v. United States, 470 F.2d 1199, 1203 (1st Cir. 1972), cert. denied, 412 U.S. 921, 93 S.Ct. 2741, 37 L.Ed.2d 148 (1973). . “[0]nce a matter has been decided adversely to a defendant on direct appeal it cannot be relitigated in a collateral attack under section 2255.” United States v. Natelli, 553 F.2d 5, 7 (2d Cir.), cert. denied, 434 U.S. 819, 98 S.Ct. 59, 54 L.Ed.2d 75 (1977). Accord: Meyers v. United States, 446 F.2d 37, 38 (2d Cir. 1971). See also United States v. Gordon, 433 F.2d 313, 314 (2d Cir. 1970) (per curiam). . The reasoning behind this practice has been as foilows. When separate judgments of conviction are entered for violations of § 2113(a) and § 2113(d), district courts are prohibited from imposing separate sentences for each conviction, whether consecutive or concurrent, because such multiple sentencing amounts to an" }, { "docid": "14670381", "title": "", "text": "up to life as determined by the court * * *. Ilobbery is defined as a “crime of violence” by D.C.Code § 22-3201 (Supp. III, 1970). . Count II charged: On or about August 13, 1968, within the District of Columbia, Walter B. Spears, while armed with a dangerous weapon, that is, a pistol, by force and violence and against resistance and by putting in fear, stole and took from the person and from the immediate actual possession of Clarence W. Smith, property of the United States, in the care, custody and control of Clarence W. Smith, of the value of about $1,-944.75, consisting of $1,944.75 in money. . Appellant did not raise this issue in the court below. We consider it here, however, because of its importance. Fed.R. Crim.P. 52(b). . It was necessary to prove an assault under both Counts I and II of the indictment. . E. g., Duckett v. United States, 133 U.S.App.D.C. 305, 410 F.2d 1004 (1969); Greene v. United States, 100 U.S.App.D.C. 396, 246 F.2d 677 (1957), rev’d on other grounds, 358 U.S. 326, 79 S.Ct. 340, 3 L.Ed.2d 340 (1959). . See United States v. Casson, 140 U.S. App.D.C. 141, 434 F.2d 415 (1970) ; Coleman v. United States, 137 U.S.App. D.C. 48, 420 F.2d 616 (1969); Bryant v. United States, 135 U.S.App.D.C. 138, 417 F.2d 555 (1969). Other circuits have done likewise. See, e. g., United States v. McKenzie, 414 F.2d 808 (3d Cir. 1969); Jones v. United States, 396 F.2d 66 (8th Cir. 1968); Holland v. United States, 384 F.2d 370 (5th Cir. 1967); Hibdon v. United States, 204 F.2d 834 (6th Cir. 1953). . See, e. g., Benton v. Maryland, 395 U.S. 784, 790-791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Street v. New York, 394 U.S. 576, 579-580 n. 3, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Sibron v. New York, 392 U.S. 40, 50-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ; Carafas v. LaVallee, 391 U.S. 234, 237-238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Ginsberg v. New York, 390 U.S. 629, 633-634 n. 2, 88 S.Ct." }, { "docid": "18312573", "title": "", "text": "then left the courtroom). THE MARSHAL: The Court is in recess until 1:30. . The Court in Sibron noted that the appellant’s misdemeanor conviction could be used for impeachment and sentencing purposes in future criminal proceedings. In Ginsberg v. New York, 1968, 390 U.S. 629, 633 n. 2, 88 S.Ct. 1274, 20 L.Ed.2d 195, the doctrine of mootness was not applied because it was possible that the appellant’s license to operate a luncheonette might be withdrawn in consequence of his conviction. In Street v. New York, 1969, 394 U.S. 576, 579-580 n. 3, 89 S.Ct. 1354, 22 L.Ed.2d 572, the proceedings were not moot in part because the appellant’s employer, the New York Transit Authority, had instituted disciplinary proceedings against him as a result of his conviction. . In Bloom v. Illinois, 1968, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522, the Supreme Court states that, “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.’ Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115 (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.” . Bloom v. Illinois, 1968, 391 U.S. 194, 202, 88 S.Ct. 1477, 20 L.Ed.2d 522; Green v. United States, 1958, 356 U.S. 165, 188, 198ff, 78 S.Ct. 632, 2 L.Ed.2d 672 (dissenting opinion) ; Cammer v. United States, 1956, 350 U.S. 399, 76" }, { "docid": "5936063", "title": "", "text": "(1969); United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Walling v. Helmerich & Payne, 323 U.S. 37, 43, 65 S.Ct. 11, 89 L.Ed. 29 (1944); and Alton & So. Ry. v. International Ass’n of Mach. & A. W., 150 U.S.App.D.C. 36, 463 F.2d 872, 878-879 (1972). There is yet another independent reason why the present appeal is not moot—the collateral consequences of being adjudged mentally ill remain to plague appellant. We recently had occasion to consider whether the standard applied in criminal cases, that a “case is moot only if it is shown that there is no possibility that any collateral legal consequence will be imposed on the basis of the challenged conviction,” Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917 (1968) (emphasis added), is applicable to contested civil commitment adjudications. We answered in the affirmative relying upon the multitude of legal disabilities radiating from the label “mentally incompetent.” Justin v. Jacobs, 145 U.S.App.D.C. 355, 449 F.2d 1017, 1018-1020 (1971). Cf. Hudson v. Hardy, 137 U.S.App.D.C. 366, 424 F.2d 854 (1970). For example, while the commitment stands on the record, the party may face state constitutional and statutory restrictions on his voting rights; restrictions on his right to serve on a federal jury; restrictions on his ability to obtain a drivers license; and limitations on his access to a gun license. Moreover, it is still commonly held that an adjudication of mental incompetency gives rise to a re-buttable presumption of continued incompetency. In many jurisdictions such a presumption may, in turn, affect the right to dispose of property, to execute contracts and to perform many similar and commonplace functions. Indeed, such an adjudication, while not always crippling, is certainly always an ominous presence in any interaction between the individual and the legal system. Such evidence will frequently be revived to attack the capacity of a trial witness. Depending upon the diagnosis, it may be admissible for impeachment purposes. Indeed, even in a criminal trial it may be available to attack the character of" }, { "docid": "11479793", "title": "", "text": "counts. For all of the foregoing reasons, the orders of the District Court are affirmed, but the cause is remanded solely in order that the convictions under Counts I and II may be vacated. . Prince v. United States, 352 U.S. 322, 327-329, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); United States v. Fleming, 504 F.2d 1045, 1052-1053 (7th Cir. 1974). . Fleming, supra, 504 F.2d at 1053. . The Holiday holding that an erroneous imposition of two sentences for a single offense of which the accused has been convicted does not constitute double jeopardy, has been followed in Holscher v. Young, 440 F.2d 1283, 1290 (8th Cir. 1971); Michener v. United States, 157 F.2d 616, 620 (8th Cir. 1946), rev’d on other grounds, 331 U.S. 789, 67 S.Ct. 1509, 91 L.Ed. 1818 (1946), rehearing denied, 332 U.S. 784, 68 S.Ct. 30, 92 L.Ed. 367; Hensley v. United States, 156 F.2d 675, 676 (8th Cir. 1946); and White v. Pescor, 155 F.2d 902, 904 (8th Cir. 1946). . As the court said in O’Clair, supra, “ . It would seem apparent that if the state cannot constitutionally obtain two convictions for the same act at two separate trials, it cannot do so at the same trial.” 470 F.2d at 1203. . In Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968), the Supreme Court noted “the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences”. . The possible adverse collateral effects of convictions are discussed in Sibron, supra, 392 U.S. at 51-58, 88 S.Ct. 1889; Street v. New York, 394 U.S. 576, 579-580, n. 3, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Carafas v. LaVal-lee, 391 U.S. 234, 237-238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Ginsberg v. New York, 390 U.S. 629, 633-634, n. 2, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). . Benton v. Maryland, 395 U.S. 784, 790, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). . Clermont v. United States, 432 F.2d 1215, 1217 (9th Cir. 1970), cert. denied, 402 U.S. 997, 91" }, { "docid": "277511", "title": "", "text": "pursuant to the provisions of section 814 of this title . may apply to the Secretary for review of the order . . .. An operator issued a notice pursuant to section 814(b) or (i) of this title . . . may, if he believes that the period of time fixed in such notice for abatement of the violation is unreasonable, apply to the Secretary for review of the notice . . Decision and order of November 19, 1973. . 1 IBMA 50, 1971-1973 OSHD hh 20,515, 20,518 (1971). . Opinion and order of July 16, 1974. . Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). . Id. at 16, 85 S.Ct. 792; Budd Co. v. Occupational Safety and Health Review Comm'n, 513 F.2d 201, 204 (3d Cir. 1975). . Budd Co. v. Occupational Safety and Health Review Comm’n, 513 F.2d 201, 205 (3d Cir. 1975). . 29 C.F.R. § 1926.602(a)(9)(ii) (1974). . 2 IBMA 226, 1973-1974 OSHD fl 16,618 (1973). . See footnotes 13 & 14 supra and accompanying text. . Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). Petitioners also cite as supporting cases: Super Tire Engineering Co. v. McCorkie, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). . 30 U.S.C. § 819 (1970). . 30 U.S.C. § 816 (1970). . See footnote 8. . An order of withdrawal is an order requiring the mine operator to withdraw all persons, with certain necessary exceptions, from the violation area until a determination that the violation has been abated. 30 U.S.C. § 814(b), (d) (1970). . 30 U.S.C. § 814(b) (1970). . It is conceivable that some" }, { "docid": "5936062", "title": "", "text": "be the subject of a continuing controversy and not moot. See also Matthews v. Hardy, 137 U.S.App.D.C. 39, 420 F.2d 607 (1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1231, 25 L.Ed.2d 423 (1970), and Women Strike for Peace v. Hickel, 137 U.S.App.D.C. 29, 420 F.2d 597 (1969). Moreover, we cannot be oblivious to the importance of the constitutional issue posed nor the number of persons who are affected. Having recognized additionally that appellant was released on each occasion in far less time than necessary to perfect an appeal, we heed with care the words of the Supreme Court in So. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), that consideration of issues of public importance “ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review . . . .\" See also Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Walling v. Helmerich & Payne, 323 U.S. 37, 43, 65 S.Ct. 11, 89 L.Ed. 29 (1944); and Alton & So. Ry. v. International Ass’n of Mach. & A. W., 150 U.S.App.D.C. 36, 463 F.2d 872, 878-879 (1972). There is yet another independent reason why the present appeal is not moot—the collateral consequences of being adjudged mentally ill remain to plague appellant. We recently had occasion to consider whether the standard applied in criminal cases, that a “case is moot only if it is shown that there is no possibility that any collateral legal consequence will be imposed on the basis of the challenged conviction,” Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917 (1968) (emphasis added), is applicable to contested civil commitment adjudications. We answered in the affirmative relying upon the multitude of legal disabilities radiating from the label “mentally incompetent.” Justin v. Jacobs, 145 U.S.App.D.C. 355, 449 F.2d 1017," }, { "docid": "11479794", "title": "", "text": "“ . It would seem apparent that if the state cannot constitutionally obtain two convictions for the same act at two separate trials, it cannot do so at the same trial.” 470 F.2d at 1203. . In Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968), the Supreme Court noted “the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences”. . The possible adverse collateral effects of convictions are discussed in Sibron, supra, 392 U.S. at 51-58, 88 S.Ct. 1889; Street v. New York, 394 U.S. 576, 579-580, n. 3, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Carafas v. LaVal-lee, 391 U.S. 234, 237-238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Ginsberg v. New York, 390 U.S. 629, 633-634, n. 2, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). . Benton v. Maryland, 395 U.S. 784, 790, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). . Clermont v. United States, 432 F.2d 1215, 1217 (9th Cir. 1970), cert. denied, 402 U.S. 997, 91 S.Ct. 2182, 29 L.Ed.2d 163 (1971). . See Benton v. Maryland, supra, 395 U.S. at 791, 89 S.Ct. 2056." }, { "docid": "15162645", "title": "", "text": "U.S. 94, 100, 93 S.Ct. 2080, 2085, 36 L.Ed.2d 772 (1973), quoting Business Executives’ Move for Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 205, 450 F.2d 642, 666 (1971) (McGowan, J., dissenting). . For decisions that criminal cases remain alive after the sentence in question has been served because of the debilitating collateral effects of a criminal conviction, see, e. g., Sibron v. New York, 392 U.S. 40, 55-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 237, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Ginsberg v. New York, 390 U.S. 629, 633 n. 2, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). The doctrine has been extended to include challenges to arrests which do not lead to prosecutions in view of the potential consequences of an arrest record. See, e. g., Carlson v. Schlesinger, 168 U.S.App.D.C. -, 511 F.2d 1327, 1338 (D.C.Cir., 1975); Sullivan v. Murphy, 156 U.S.App.D.C. 28, 52, 478 F.2d 938, 962, cert. denied, 414 U.S. 880, 94 S.Ct 162, 38 L.Ed.2d 125 (1973). This court has adopted the same test of mootness in civil litigation, in cases dealing with the collateral consequences of a prison disciplinary action, Hudson v. Hardy, 137 U.S.App.D.C. 366, 424 F.2d 854 (1970), a commitment under the Sexual Psychopath Act, Justin v. Jacobs, 145 U.S.App.D.C. 355, 449 F.2d 1017 (1971), and a commitment for mental illness, In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648 (1973). The Ninth Circuit has recently found that the collateral consequences of a denial of tax exempt status prevented a mootness ruling. See Church of Scientology v. United States, 485 F.2d 313, 317-18 (9th Cir. 1973) (finding “no distinction\" between a civil and a criminal case for purposes of the collateral consequences doctrine). See also Kates & Barker, Mootness in Judicial Proceedings: Toward a Coherent Theory, 62 Calif.L.Rev. 1385, 1391-94 (1974). . As of this writing, most regulations to implement the Act have not been issued; some regulations have been noticed for comment; some regulations have been re-noticed, with amendment following a first round of comment. And the Act itself provides for a" }, { "docid": "14767276", "title": "", "text": "District Court’s conclusion that appellant’s “claims of * * * erroneous rulings by the Court which conducted the hearing were waived by his failure to pursue a direct appeal.” Affirmed. . D.C.Code § 22-3501 (a) (1967). . Id. § 24-301 (a) (1967), as amended (Supp. IV, 1971). . Id. §§ 22-3503 to 3511 (1967), as amended (Supp. IV, 1971). . The criminal charge was dropped without objection in September, 1958. . The discharge followed a period of about a year during which appellant was given first accompanied, and later unaccompanied, city privileges. It followed, too, by one day, his arrest in Virginia for allegedly selling the drug LSD to teen-age girls. Va.Code § 54-446.4 (1950). . After receipt and study of supplemental memoranda from the parties. . Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). . See cases cited infra note 10. . Carafas v. LaVallee, 391 U.S. 234, 237, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). . Benton v. Maryland, 395 U.S. 784, 790-791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) ; Street v. New York, 394 U.S. 576, 579-580 n. 3, 89 S.Ct. 1354, 22 L.Ed. 2d 572 (1969) ; Sibron v. New York, 392 U.S. 40, 53-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ; Carafas v. La-Vallee, supra note 9, 391 U.S. at 237-238, 88 S.Ct. 1556; Ginsberg v. New York, 390 U.S. 629, 633-634, n. 2, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) ; Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) ; United States v. Morgan, 346 U.S. 502, 512-513, 74 S.Ct. 247, 98 L.Ed. 248 (1954). . 137 U.S.App.D.C. 366, 424 F.2d 854 (1970) . . Id. at 368, 424 F.2d at 856. We declined to resolve the mootness issue ourselves, but remanded it to the District Court for decision under prescribed guidelines, “[s]ince ultimate decision may turn on facts not of record here, and since the suggestion of mootness was not made until our original opinion had already issued * * Id. at 367-368, 424 F.2d at 855-856." }, { "docid": "1550492", "title": "", "text": "of mootness so as to be free at some future date to begin capacity curtailment anew, forcing its aggrieved customers and the Commission to the task of another Section 5 investigation. Id. (footnotes omitted). . See Brief for Petitioner Tennessee at 16; Order Denying Rehearing, J.A. at 151 n.4. . Brief for Petitioner Tennessee at 20 (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)). . See Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895); California v. San Pablo & T.R.R., 149 U.S. 308, 314, 13 S.Ct. 876, 37 L.Ed. 747 (1893); Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 374 (1974). . U.S.Const., art. Ill; see Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964); Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). . Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). See also SEC v. Medical Comm, for Human Rights, 404 U.S. 403, 407, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972). . Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). . Id. . See Brooklyn Union Gas Co. v. FERC, 188 U.S.App.D.C. 13, 15, 575 F.2d 894, 896 (D.C. Cir. 1978); Relf v. Weinberger, 184 U.S.App. D.C. 147, 152, 565 F.2d 722, 727 (D.C. Cir. 1977); Boston Community Media Comm. v. FCC, 166 U.S.App.D.C. 183, 184, 509 F.2d 516, 517 (D.C. Cir. 1975); Louisiana v. FPC, 503 F.2d 844, 863 (5th Cir. 1974); Alton & So. Ry. Co. v. International Ass’n of Mach. & A.W., 150 U.S.App.D.C. 36, 40-46, 463 F.2d 872, 876-82 (D.C. Cir. 1972); Mechling Barge Lines v. United States, 368 U.S. 324, 328-30, 82 S.Ct. 337, 7 L.Ed.2d 317 (1961). . Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See also Nader v. Volpe, 154 U.S.App. D.C. 332, 333-334, 475 F.2d 916, 917-18 (D.C. Cir. 1973); Alton & So." }, { "docid": "22282828", "title": "", "text": "presents federal constitutional questions affecting fundamental personal liberties. Adjudication of those issues should not be thwarted by resort to narrow interpretations of the doctrines of mootness and justiciability. Moreover, the history of this case, together with the related litigation growing out of the same incidents involving Hilliard, strongly suggests that the Government will renew its efforts before another grand jury to obtain the information it sought to compel in the case before us. Postponement of the decisions of the important constitutional issues that have ripened here is not in the interests of the public, the Government, or the witnesses. (See Moore v. Ogilvie (1969) 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1; Carroll v. President and Com’rs of Princess Anne (1968) 393 U.S. 175, 178-179, 89 S.Ct. 347, 21 L.Ed.2d 325; Sibron v. New York (1968) 392 U.S. 40, 50-58, 88 S.Ct. 1889, 20 L.Ed. 2d 917; Carafas v. LaVallee (1968) 391 U.S. 234, 237-240, 88 S.Ct. 1556, 20 L.Ed.2d 554; Division 1287 of Amalgamated Ass’n of St., Electric Ry, & Motor Coach Employees v. Missouri (1963) 374 U.S. 74, 77-78, 83 S.Ct. 1657, 10 L.Ed.2d 763, rehearing denied, 375 U.S. 870, 84 S.Ct. 29, 11 L.Ed.2d 100; Gray v. Sanders (1963) 372 U.S. 368, 375-376, 83 S.Ct. 801, 9 L.Ed.2d 821; United States v. W. T. Grant Co. (1953) 345 U.S. 629, 632-633, 73 S.Ct. 894, 97 L.Ed. 1303; Southern Pac. Terminal Co. v. Interstate Commerce Comm. (1911) 219 U.S. 498, 514-516, 31 S.Ct. 279, 55 L.Ed. 310; United States v. Trans-Missouri Freight Association (1897) 166 U.S. 290, 307-310, 17 S.Ct. 540, 41 L.Ed. 1007; Washington Free Community v. State’s Att’y of Montgomery Co., Md. (D.Md.1970, 3-judge court) 310 F.Supp. 436, 442-443.) V. CONCLUSION In 1734, William Cosby, the English governor of New York, sought to have the publisher of a radical newspaper with extremely limited circulation indicted for criminal libel. The grand jury twice refused to indict. Thereafter, the publisher, Peter Zenger, was charged with libel in an information and one of the most celebrated trials in American history followed. It was with this and similar" }, { "docid": "23541647", "title": "", "text": "rel. Levy v. McMann, 394 F.2d 402 (2 Cir. 1968). These cases, which we find persuasive, are fully applicable here. From the standpoint of comity, further proceedings should not be required in the state courts with regard to the issue of right to counsel. If it is assumed that Hewett has properly raised the question of drug influence, this claim is in no way related to the right to counsel contention. Since the latter has been fully explored by the state courts, it is ripe for federal consideration. We conclude that the district judge was in error in dismissing the petition on this ground. IV Although both petitioners have served the terms of imprisonment imposed when the probation was revoked, we conclude that neither case is moot. In Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), the Supreme Court held that federal habeas corpus jurisdiction was not ousted when, pending disposition of the application for the writ, a prisoner was released after having served his full sentence. More recently, the Court has stated flatly that the “mere possibility” that “adverse collateral legal consequences” will flow from a prior conviction is sufficient to rescue the case from the potential “limbo of mootness.” Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917 (1968). See, Ginsberg v. New York, 390 U.S. 629, 633 n. 2, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). In the instant appeals North Carolina seeks to distinguish these decisions on the ground that there criminal convictions were involved, whereas here the underlying convictions have not been challenged and will, therefore, remain in full effect no matter what we decide today. This distinction is not persuasive. See, Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 471, 1 L.Ed.2d 393 (1957) (only sentence and not conviction challenged). If adverse collateral legal consequences may possibly flow from the revocations of probation, we see no reason why the right to counsel issue should be considered moot; otherwise, petitioners may suffer actual adverse collateral legal consequences stemming from the alleged constitutional" }, { "docid": "6291911", "title": "", "text": "constitutional injury. United States v. Calandra, 414 U.S. 338, 354, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). . See County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (“[Jjurisdiction, properly acquired may abate if the case becomes moot because (1) it can be said with assurance that ‘there is no reasonable expectation . . . ’ that the alleged violation will recur, . . and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.”) . See, e. g., Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 1898, 20 L.Ed.2d 917 (1968) (in criminal cases “the Court abandoned all inquiry into the actual existence of specific collateral consequences and in effect presumed that they existed”); Jessup v. Clark, 490 F.2d 1068, 1070 (3d Cir. 1973) (collateral consequences of a criminal conviction may include professional disciplinary proceedings and prohibition against holding certain offices or engaging in certain businesses); In re Ballay, 157 U.S.App.D.C. 59, 62-63, 482 F.2d 648, 651-52 (D.C.Cir.1973) (involuntary civil commitment under label of mental incompetence may bring state restrictions on voting rights, rights to serve on jury, restrictions on ability to obtain drivers license, and may increase the likelihood of subsequent commitment). . Other than potential loss of employment, mentioned in Street v. New York, 394 U.S. 576, 579 n.3, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), the Supreme Court has not based an exception to mootness on any nonlegal consequence. See Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 381 n.38 (1974). . United States v. Munsingwear, 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Bagby v. Beal, 606 F.2d 411 (3d Cir. 1979). Vacating the district court’s judgment of civil contempt should satisfy Berwick’s concern that the court’s order may work further injury by Ber-wick’s being considered a recidivist in any future proceeding. It is doubtful, however, that a company that had purged its civil contempt would be characterized as a recidivist in a subsequent contempt proceeding. Cf. In re Application to" }, { "docid": "277512", "title": "", "text": "accompanying text. . Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). Petitioners also cite as supporting cases: Super Tire Engineering Co. v. McCorkie, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). . 30 U.S.C. § 819 (1970). . 30 U.S.C. § 816 (1970). . See footnote 8. . An order of withdrawal is an order requiring the mine operator to withdraw all persons, with certain necessary exceptions, from the violation area until a determination that the violation has been abated. 30 U.S.C. § 814(b), (d) (1970). . 30 U.S.C. § 814(b) (1970). . It is conceivable that some factual configuration would bring this case within the Southern Pacific rule. No such facts have been brought to our attention in this case, however, and we therefore need not discuss that possibility. . Freeman Coal Corp., 1 IBMA 1, 1971-1973 OSHD H 15,367 (1970). . We consider that the Fourth Circuit in Reliable Coal Corp. v. Morton, 478 F.2d 257, 258 n. 1 (4th Cir. 1973), although it did not explicate the underlying reasoning, reached the same result. Petitioners’ reliance on Eastern Assoc. Coal Corp. v. Interior Board of Mine Operations Appeals, 491 F.2d 277 (4th Cir. 1974), to arrive at a contrary conclusion would appear to be inapposite, since that case dealt with review of a withdrawal order that had been abated, and not with review of a notice of violation. . Budd Co. v. Occupational Safety and Health Rev. Comm’n, 513 F.2d 201 (3d Cir. 1975). “[T]he agency’s interpretation of a regulation ‘is deemed of controlling weight as long as it is one of several reasonable interpretations ..’ ” Id. at 205 (quoting" }, { "docid": "14767277", "title": "", "text": "23 L.Ed.2d 707 (1969) ; Street v. New York, 394 U.S. 576, 579-580 n. 3, 89 S.Ct. 1354, 22 L.Ed. 2d 572 (1969) ; Sibron v. New York, 392 U.S. 40, 53-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ; Carafas v. La-Vallee, supra note 9, 391 U.S. at 237-238, 88 S.Ct. 1556; Ginsberg v. New York, 390 U.S. 629, 633-634, n. 2, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) ; Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) ; United States v. Morgan, 346 U.S. 502, 512-513, 74 S.Ct. 247, 98 L.Ed. 248 (1954). . 137 U.S.App.D.C. 366, 424 F.2d 854 (1970) . . Id. at 368, 424 F.2d at 856. We declined to resolve the mootness issue ourselves, but remanded it to the District Court for decision under prescribed guidelines, “[s]ince ultimate decision may turn on facts not of record here, and since the suggestion of mootness was not made until our original opinion had already issued * * Id. at 367-368, 424 F.2d at 855-856. . E. g., Va.Const. § 23 and Va.Code § 24.1-42 (Supp.1970) (barring “insane persons”) ; cf. Md.Const. art. 1, § 2 (barring persons “non compos mentis”). . 28 U.S.C. § 1865(b) (4) (Supp. V. 1970). . E. g., Va.Code § 46.1-360 (1950). . District of Columbia Police Regulations §52.5(c) (2) (1969). See also D.C.Code §§ 22-3207, 3210(3) (a) (1967). . Sibron v. New York, supra note 10, 392 U.S. at 57, 88 S.Ct. at 1900. The Court there pointed out that in Pollard v. United States, supra note 10, it had “abandoned all inquiry into the actual existence of specific collateral consequences [of a criminal conviction] and in effect presumed that they existed,” id. at 55, 88 S.Ct. at 1898. The Court concluded that the “mere possibility” of collateral consequences was enough to keep the case alive. See also Benton v. Maryland, supra note 10, 395 U.S. at 790-791, 89 S.Ct. at 2060, where the Court held that although the possibility of counting both of petitioner’s two convictions against him in a later recidivist proceeding" } ]

[ { "docid": "168071", "title": "", "text": "the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection and copying of any or all of the designated materials or the premises. (c)(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (iv) subjects a person to undue burden. Fed.R.CivJP. 45(c)(2)(B), (c)(3)(A)(iv). The fourteen day time limitation to serve written objections to a subpoena is crucial as failure to do so typically constitutes a waiver of such objections. In re DG Acquisition Corp., 151 F.3d 75, 81 (2d Cir.1998); Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48-49 (S.D.N.Y.1996) (“FRCP 45(c)(2)(B) requires the recipient of a subpoena to raise all objections at once and in a timely manner so that discovery does not become a ‘game’.”); United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884 (1950). The burden of persuasion in a motion to quash a subpoena issued in the course of civil litigation is borne by the movant. United States v. International Bus. Machs. Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979). The Court notes that in certain circumstances and for good cause the failure to timely serve written objections will not bar consideration of the objections. Semtek Int’l, Inc. v. Merkuriy Ltd., 1996 WL 238538, at *2 (N.D.N.Y.1996). Such circumstances may be found where: (1) the subpoena is overbroad on its face and exceeds the bounds of fair discovery; (2) the subpoenaed witness is a non-party acting in good faith; and (3) counsel for the witness and counsel for the party serving the subpoena were in contact concerning the witness’ compliance prior to the time the witness challenged the legal basis for the subpoena. Semtek, 1996 WL 238538, at *2; Concord Boat, 169 F.R.D. at 48-19. In this case, upon a good faith determination that the refinancing transaction in question may be improper, the Trustee applied to the Bankruptcy Court for authorization to compel Beneficial to produce loan documents and" } ]

[ { "docid": "17282817", "title": "", "text": "quash or modify a subpoena if the subpoena “subjects a person to undue burden.” Fed.R.Civ.P. 45(c)(3)(A)(iv). The burden of persuasion in a motion to quash a subpoena is borne by the movant. United States v. Int’l Bus. Mach. Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979); see 9 Wright & Miller, Federal Practice and Procedure § 2449 at p. 46 (1995). An evaluation of undue burden requires the court to weigh the burden to the subpoenaed party against the value of the information to the serving party. Whether a subpoena imposes an “undue burden” depends upon “such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” IBM, 83 F.R.D. at 104. However, courts also give special weight to the burden on non-parties of producing documents to parties involved in litigation. See Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir.1998) (“concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs.”); Heidelberg Ams., Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 41-42 (1st Cir.2003); see also Fed.R.Civ.P. 45(c)(2)(B) (“an order to compel production shall protect any person who is not a party from significant expense.... ”). The determination of issues of burden and reasonableness is committed to the sound discretion of the trial court. Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y.1996); 9A Wright & Miller, § 2463. On February 22, 2000, The Babcock & Wilcox Company (“B & W”) and certain of its subsidiaries (“Debtors”), including Control, filed petitions for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Louisiana (“Bankruptcy Court”). (Pl.’s Mem. Supp. Mot. at 6-11). This bankruptcy is currently pending. (Id.). Pursuant to that filing, the Debtors’ insurance assets became assets of the bankruptcy estate, including any policies issued by Travelers to the Debtors under which Control may or may not be an insured. 11 U.S.C." }, { "docid": "23589632", "title": "", "text": "designated in the subpoena written objection to inspection and copying of any or all of the designated materials or the premises. (c)(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (iv) subjects a person to undue burden. Fed.R.Civ.P. 45(c)(2)(B), (c)(3)(A)(iv). The failure to serve written objections to a subpoena within the time specified by Rule 45(c)(2)(B) typically constitutes a waiver of such objections. United States v. International Bus. Mach. Corp., 70 F.R.D. 700, 701-02 (S.D.N.Y.1976); see Krewson v. City of Quincy, 120 F.R.D. 6, 7 (D.Mass. 1988) (citing cases from various district courts). “In unusual circumstances and for good cause, however, the failure to act timely will not bar consideration of objections.” Semtek Int’l, Inc. v. Merkuriy Ltd., No. 3607 DRH, 1996 WL 238538, at *2 (N.D.N.Y. May 1, 1996); see IBM, 70 F.R.D. at 702 & n. 9; Angell v. Shawmut Bank Conn. Nat’l Assoc., 153 F.R.D. 585, 590 (M.D.N.C.1994); In re Goodyear Tire & Rubber Co. Sec. Litig., 1991 WL 172930, at *1, 1991 U.S.Dist. LEXIS 14486, at *2 (N.D.Ohio June 21, 1991); Krewson, 120 F.R.D. at 7; Celanese Corp. v. E.I. duPont de Nemours & Co., 58 F.R.D. 606, 609-10 (D.Del.1973). Courts find such unusual circumstances where: (1) “the subpoena is overbroad on its face and ‘exceeds the bounds of fair discovery,’” Semtek, 1996 WL 238538, at *2; Krewson, 120 F.R.D. at 7; (2) the subpoenaed witness is a non-party acting in good faith, Semtek, 1996 WL 238538, at *2; and (3) counsel for witness and counsel for subpoenaing party were in contact concerning the witness’ compliance prior to the time the witness challenged legal basis for the subpoena. Id.; Goodyear, 1991 WL 172930, at *2, 1991 U.S.Dist. LEXIS 14486, at *2-3; Celanese Corp., 58 F.R.D. at 610. As this Court frequently has noted, “the burden of persuasion in a motion to quash a subpoena issued in the course of civil litigation is borne by the movant.” United States v. International Bus. Mach Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979); IBM, 70 F.R.D. at 702; see 9A" }, { "docid": "5282431", "title": "", "text": "for decision. II. Discussion A. Standard of review The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad. See Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir.1998). Rule 26(b) authorizes parties to obtain “discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” and all information “reasonably calculated to lead to discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). “The scope of examination permitted under Rule 26(b) is broader than that permitted at trial. The test is whether the line of interrogation is reasonably calculated to lead to the discovery of admissible evidence.” Lewis, 135 F.3d at 402 (quoting Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 501 (6th Cir. 1970)). Rule 45 provides in pertinent part: [A] person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. Fed.R.Civ.P. 45(c)(2)(B). Rule 45 further provides that “the court by which a subpoena was issued shall quash or modify the subpoena if it ... subjects a person to undue burden.” Fed.R.Civ.P. 45(c)(3)(A)(iv). Whether a subpoena imposes an “undue burden” upon a witness is a case specific inquiry that turns on “such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 53 (S.D.N.Y.1996) (quoting United States v. Int’l Bus. Mach. Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979)). Courts are required to balance the need for" }, { "docid": "12695221", "title": "", "text": "second subpoenas were improperly quashed. Fed.R.Civ.P. 45 provides that a subpoena may be quashed if it: 1) fails to allow reasonable time for compliance; 2) requires a person who is not a party or an officer of a party to travel more than 100 miles from a place where that person resides, is employed or regularly transacts business in person; 3) requires disclosure of privileged or other protected matter and no exception or waiver applies; or 4) subjects a person to undue burden. Fed.R.Civ.P. 45(e)(3)(A). “Whether a subpoena imposes upon a witness an ‘undue burden’ depends upon ‘such factors as rele- vanee, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.’ ” Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y.1996) (quoting United States v. Int’l Bus. Mach. Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979)). Moreover, Sturza’s status as a non-party entitles him to “consideration regarding expense and inconvenience.” Id. (citing Fed.R.Civ.P. 45(c)(2)(B)). In addition, Fed.R.Civ.P. 26 provides that discovery shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. Fed.R.Civ.P. 26(b)(2). In this case, i-STAT’s second set of subpoenas is unduly burdensome under Fed. R.Civ.P. 45. First, the requests from the second subpoenas are overbroad. The second subpoenas request documents from 1992 onward, while the original subpoenas requested documents from 1994 onward. Given that i-STAT did not enter Nova’s product market until well after 1992, i-STAT’s request for documents and information" }, { "docid": "7086221", "title": "", "text": "CNA. The court agrees. Specifically, Rule 45(c)(2)(B) provides in part: Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. In support of its position that the fourteen-day time frame does not apply to the provision of privilege logs, Wausau accurately argues that privilege logs are governed by Rule 45(d)(2), not Rule 45(c)(2)(B). Courts interpreting Rule 45(d)(2) have held that a party claiming a privilege may provide a privilege log within a “reasonable time” as long as objections are asserted within the fourteen-day time frame. See, e.g., Tuite v. Henry, 98 F.3d 1411, 1416 (D.C.Cir.1996); DG Acquisition Corp. v. Dabah, 151 F.3d 75, 81 (2nd Cir.1998). In this case, Wausau provided MSBAIT with a privilege log on September 9, 1998, which is certainly within a reasonable time as required under Rule 45(d)(2) (the fourteen day objection period only having expired on September 4, 1998), and as a result, Wausau did not waive its right to object to the subpoena. III. The Three Documents At Issue Are Protected By The Work Product Privilege The work product privilege is an important limitation on the scope of discovery. It exists so that one party does not gain an unfair advantage over another party by learning the other party’s counsel’s strategies and legal theories. Allendale Mut. Ins. Co. v. Bull Data Systems, Inc., 152 F.R.D. 132, 135 (N.D.Ill.1993). “The work product privilege is designed to protect material ‘prepared in anticipation of litigation or for trial by or for another party or by or for that other" }, { "docid": "5025925", "title": "", "text": "the midst of the holiday period, and it was not received by the Department of Justice [as counsel to the Department of State] until January 13, 2005. An objection letter was sent the very next day,” after counsel had conversed by telephone. We begin with the Government’s argument that the time limit set by Rule 45(c)(2)(B) applies only to objections concerning “the substance of the subpoena,” by which it means objections such as “privilege or relevance or burden” that go to the “inspection or copying ... of designated materials”; from these it distinguishes objections going to the “ultimate enforcement” of the subpoena, the only example given being the current objection that the Government is not subject to a nonparty subpoena. The Government defends its distinction on the ground that objections going to enforcement cannot “be resolved or fleshed out before a dispute reaches the district court.” The significance of this statement eludes us, and the Government adduces not a single case in support of it. Such dictum as we can find is against it. See In re DG Acquisition Corp., 151 F.3d 75, 81 (2d Cir.1998) (stating, relative to a belated claim of privilege, the Rule “require[s] the recipient of a subpoena to raise all objections at once, rather than in staggered batches, so that discovery does not become a ‘game’ ”). We need not accept the Government’s distinction, however, in order to consider its present objection. For the Government is correct that the district court may, “in unusual circumstances and for good cause,” consider an untimely objection to a subpoena. Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y.1996); see 9 James W. Moore et al., Moore’s Federal Practice § 45.04[2] (3d ed.2004). Certain factors may guide the district court’s discretion, for example, whether (1) the subpoena is “overbroad on its face and exceeds the bounds of fair discovery”; (2) the subpoenaed witness is a nonparty acting in good faith; and (3) counsel for the witness was in contact with counsel for the party issuing the subpoena prior to filing its formal objection. Concord Boat, 169 F.R.D." }, { "docid": "14586491", "title": "", "text": "of every action.” Federal Rule of Civil Procedure 45 governs subpoenas duces tecum for the production of documents with or without the taking of a deposition. One of the purposes of Rule 45 is “to facilitate access outside the deposition procedure provided by Rule 30 to documents and other information in the possession of persons who are not parties.... ” Advisory Committee Notes to 1991 Amendment. “The non-party witness is subject to the same scope of discovery under this rule as that person would be as a party to whom a request is addressed pursuant to Rule 34.” Id. Under Rule 45, the nonparty served with the subpoena duces tecum may make objections to the subpoena duces tecum within 14 days after service or before the time for compliance, if less than 14 days. Fed.R.Civ.P. 45(c)(2)(B). On timely motion, the court may quash or modify the subpoena. Rule 45(c)(3)(A). A party cannot object to a subpoena duces tecum served on a nonparty, but rather, must seek a protective order or make a motion to quash. Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial, H 11:2291 (2005 rev.) (emphasis in original); see also Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 n. 5 (9th Cir.1983) (“Once the person subpoenaed objects to the subpoena ... the provisions of Rule 45[c] come into play.”). Here, defendant, rather than non-party KSA, made timely objections to the Rule 45 subpoena duces tecum. A nonparty’s failure to timely make objections to a Rule 45 subpoena duces tecum generally requires the court to find that any objections have been waived. In re DG Acquisition Corp., 151 F.3d 75, 81 (2d Cir.1998); Creative Gifts, Inc. v. UFO, 183 F.R.D. 568, 570 (D.N.M.1998); Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial, § 11:2293 (2005 rev.). Nonetheless, “[i]n unusual circumstances and for good cause, ... the failure to act timely will not bar consideration of objections [to a Rule 45 subpoena].” McCoy v. Southwest Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D.Cal.2002) (citations and internal quotation marks omitted); American Elec. Power" }, { "docid": "23589634", "title": "", "text": "Wright & Miller, § 2449, at p. 46. Whether a subpoena imposes upon a witness an “undue burden” depends upon “such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” IBM, 83 F.R.D. at 104. In addition, the status of a witness as a non-party to the underlying litigation “entitles [the witness] to consideration regarding expense and inconvenience.” Fed.R.Civ.P. 45(c)(2)(B) (“an order to compel production shall protect any person who is not a party from significant expense.... ”); Semtek, 1996 WL 238538, at *2. The determination of issues of burden and reasonableness is committed to the sound discretion of the trial court. Id. at *3; 9A Wright & Miller, Federal Practice and Procedure, § 2463. Of the three issues raised in the parties’ submissions to this Court, the timeliness of Merrill Lynch’s motion to quash is a threshold issue that this Court must resolve before considering movant’s substantive objections to the Brunswick Subpoena. In order for this Court to determine whether the instant case presents the “unusual circumstances” that would excuse Merrill’s alleged failure to timely file their objections, however, this Court must first evaluate the reasonableness of the Brunswick Subpoena. See Semtek, 1996 WL 238538, at *2; Krewson, 120 F.R.D. at 7. Accordingly, this Court will determine the reasonableness of the subpoena before considering the other issues raised by the instant motion. II. Reasonableness of the Brunswick Subpoena Merrill Lynch claims that the Brunswick Subpoena is unreasonable and should be quashed pursuant to Rule 45(e)(3)(A)(iv). (Merrill’s Memo at 9.) Merrill maintains that the Brunswick Subpoena “is clearly overbroad on its face.” Id. It asserts that “[m]any of the requests bear no relation to the antitrust litigation, because they call for production of documents with no direct relationship to the marine aspect of Brunswick’s business.” Id. In support of this assertion, Merrill explains the nature of both Brunswick’s business and its relationship with Merrill. Brunswick is a multinational corporation with offices and facilities on" }, { "docid": "17294785", "title": "", "text": "be burdensome to require that they examine the documents in their possession, contending that they have failed to offer evidence that responding to the subpoenas would be unreasonable or oppressive. He posits that any burden is outweighed by his need for discovery because Babcock and Carter possess information that is critical to his claims, they may have evidence that one or more defendants improperly obtained, and “they may even have participated with the defendants in improper conduct in obtaining some of that information.” Id. B Rule 45(c)(3)(A)(iv) requires that on timely motion, the court by which a subpoena was issued must quash or modify the subpoena if it “subjects a person to undue burden.” The movant has the burden of proof, Linder v. Department of Defense, 133 F.3d 17, 24 (D.C.Cir.1998) (citing Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C.Cir.1984)); Vitale v. McAfee, 170 F.R.D. 404, 407 (E.D.Pa.1997), and must meet “the heavy burden of establishing that compliance with the subpoena would be ‘unreasonable and oppressive.’ ” Barnes Found, v. Township of Lower Merion, 1997 WL 169442, at * 4 (E.D.Pa. Apr.7,1997) (quoting Composition Roofers Union Local SO Welfare Trust Fund v. Graveley Roofing Enters., Inc., 160 F.R.D. 70, 72 (E.D.Pa.1995)). “Whether a burdensome subpoena is reasonable ‘must be determined according to the facts of the case,’ such as the party’s need for the documents and the nature and importance of the litigation.” Linder, 133 F.3d at 24 (quoting Northrop, 751 F.2d at 407). Among the factors that the court may consider in determining whether there is an undue burden are “relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y.1996) (quoting United States v. International Bus. Machs. Corp., 83 F.R.D. 97, 104 (S.D.N.Y. 1979)). The status of a witness as a nonparty entitles the witness to consideration regarding expense and inconvenience. Id. (citing Rule 45(c)(2)(B)). Undue burden can be found when a" }, { "docid": "5282432", "title": "", "text": "the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. Fed.R.Civ.P. 45(c)(2)(B). Rule 45 further provides that “the court by which a subpoena was issued shall quash or modify the subpoena if it ... subjects a person to undue burden.” Fed.R.Civ.P. 45(c)(3)(A)(iv). Whether a subpoena imposes an “undue burden” upon a witness is a case specific inquiry that turns on “such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 53 (S.D.N.Y.1996) (quoting United States v. Int’l Bus. Mach. Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979)). Courts are required to balance the need for discovery against the burden imposed on the person ordered to produce documents, and the status of a person as a non-party is a factor that weighs against disclosure. See Katz v. Batavia Marine & Sporting Supplies, 984 F.2d 422, 424 (Fed. Cir.1993); Echostar Communications Corp. v. The News Corporation Ltd., 180 F.R.D. 391, 394 (D.Colo.1998); see also Concord Boat, 169 F.R.D. at 49; Fed.R.Civ.P. 45(c)(2)(B). Demonstrating relevance is the burden of the party seeking discovery. See Katz, 984 F.2d at 424-25; Echostar Communications, 180 F.R.D. at 394; Compaq Computer Corp. v. Packard Bell Electronics, Inc., 163 F.R.D. 329, 335 (N.D.Cal.1995). B. Whether Newport timely served written objections to the subpoena The Government first argues that Newport waived its objections to the January 20 subpoena because it failed to serve written objections “within 14 days after service of the subpoena,” as required by Rule 45. The Government maintains that Newport did not serve its objections, or otherwise contact it regarding the subpoena, until March 1. The Government further maintains that Newport’s failure to comply with the" }, { "docid": "14586493", "title": "", "text": "Co. v. United States, 191 F.R.D. 132, 136 (S.D.Oh.1999); In re Motorsports Merchandise Antitrust Litigation, 186 F.R.D. 344, 349 (W.D.Va.1999); Alexander v. Federal Bureau of Investigation, 186 F.R.D. 21, 34 (D.D.C.1998); Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y.1996). Courts have found unusual circumstances where, for instance, the subpoena is overbroad on its face and exceeds the bounds of fair discovery and the subpoenaed witness is a non-party acting in good faith. McCoy, 211 F.R.D. at 385; American Electric Power Co., 191 F.R.D. at 136-37; Alexander, 186 F.R.D. at 34; Concord Boat Corp., 169 F.R.D. at 48. In light of the overbroad nature of the subpoena served by plaintiffs on nonparty KSA, the Court finds defendant’s objections to the subpoena have not been waived. Rule 45(c)(3)(A) sets forth the bases for a court to quash or modify a subpoena. In particular, it provides: [o]n timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance; (ii) requires a person who is not a party ... to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business ..., or (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) subjects a person to undue burden. Fed.R.Civ.P. 45(e)(3)(A). Additionally, in the event the subpoena “requires disclosure of a trade secret or other confidential research, development, or commercial information, ... the court may ... quash ... the subpoena....” Fed.R.Civ.P. 45(c)(3)(B). As an initial matter, the party who moves to quash a subpoena has the “burden of persuasion” under Rule 45(c)(3). Travelers Indem. Co. v. Metropolitan Life Insur. Co., 228 F.R.D. 111, 113 (D.Conn.2005); Concord Boat Corp., 169 F.R.D. at 48; United States v. IBM, 83 F.R.D. 97, 104 (S.D.N.Y.1979). Here, defendant seeks to quash or, in the alternative, to modify the Rule 45 subpoena on relevancy grounds, contending that the information sought is irrelevant in light of paragraph 5 of the Import Broker Agreement, and the subpoena" }, { "docid": "12695220", "title": "", "text": "undefined in the rule itself, and i-STAT cites no cases in support of its argument, it maintains that Sturza’s service was unreasonable because it occurred so close to the subpoenas’ return date. The 1991 amendment states that the new revision is to “clarify and enlarge the protections afforded persons who are required to assist the court by giving information or evidence.” Fed.R.Civ.P. Rule 45, 1991 Amendment, Advisory Committee Notes. Because this language indicates that the revised rule takes no rights away from the party subpoenaed, and in fact is to enlarge that party’s protections, it is reasonable to assume — and nothing in the 1991 Amendment Advisory Committee Notes indicates otherwise — that the subpoenaed party has at least as much time to move to quash as it previously did. Thus, as before the revision, service anytime before the subpoenas’ return date should be considered timely. Here, the motion to quash was served by hand two days before the subpoenas’ return date. The motion is thus “timely” under Rule 45. i-STAT next contends that the second subpoenas were improperly quashed. Fed.R.Civ.P. 45 provides that a subpoena may be quashed if it: 1) fails to allow reasonable time for compliance; 2) requires a person who is not a party or an officer of a party to travel more than 100 miles from a place where that person resides, is employed or regularly transacts business in person; 3) requires disclosure of privileged or other protected matter and no exception or waiver applies; or 4) subjects a person to undue burden. Fed.R.Civ.P. 45(e)(3)(A). “Whether a subpoena imposes upon a witness an ‘undue burden’ depends upon ‘such factors as rele- vanee, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.’ ” Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y.1996) (quoting United States v. Int’l Bus. Mach. Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979)). Moreover, Sturza’s status as a non-party entitles him to “consideration regarding expense and inconvenience.” Id. (citing" }, { "docid": "23589633", "title": "", "text": "*1, 1991 U.S.Dist. LEXIS 14486, at *2 (N.D.Ohio June 21, 1991); Krewson, 120 F.R.D. at 7; Celanese Corp. v. E.I. duPont de Nemours & Co., 58 F.R.D. 606, 609-10 (D.Del.1973). Courts find such unusual circumstances where: (1) “the subpoena is overbroad on its face and ‘exceeds the bounds of fair discovery,’” Semtek, 1996 WL 238538, at *2; Krewson, 120 F.R.D. at 7; (2) the subpoenaed witness is a non-party acting in good faith, Semtek, 1996 WL 238538, at *2; and (3) counsel for witness and counsel for subpoenaing party were in contact concerning the witness’ compliance prior to the time the witness challenged legal basis for the subpoena. Id.; Goodyear, 1991 WL 172930, at *2, 1991 U.S.Dist. LEXIS 14486, at *2-3; Celanese Corp., 58 F.R.D. at 610. As this Court frequently has noted, “the burden of persuasion in a motion to quash a subpoena issued in the course of civil litigation is borne by the movant.” United States v. International Bus. Mach Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979); IBM, 70 F.R.D. at 702; see 9A Wright & Miller, § 2449, at p. 46. Whether a subpoena imposes upon a witness an “undue burden” depends upon “such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” IBM, 83 F.R.D. at 104. In addition, the status of a witness as a non-party to the underlying litigation “entitles [the witness] to consideration regarding expense and inconvenience.” Fed.R.Civ.P. 45(c)(2)(B) (“an order to compel production shall protect any person who is not a party from significant expense.... ”); Semtek, 1996 WL 238538, at *2. The determination of issues of burden and reasonableness is committed to the sound discretion of the trial court. Id. at *3; 9A Wright & Miller, Federal Practice and Procedure, § 2463. Of the three issues raised in the parties’ submissions to this Court, the timeliness of Merrill Lynch’s motion to quash is a threshold issue that this Court must resolve before considering movant’s substantive objections" }, { "docid": "14586492", "title": "", "text": "Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial, H 11:2291 (2005 rev.) (emphasis in original); see also Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 n. 5 (9th Cir.1983) (“Once the person subpoenaed objects to the subpoena ... the provisions of Rule 45[c] come into play.”). Here, defendant, rather than non-party KSA, made timely objections to the Rule 45 subpoena duces tecum. A nonparty’s failure to timely make objections to a Rule 45 subpoena duces tecum generally requires the court to find that any objections have been waived. In re DG Acquisition Corp., 151 F.3d 75, 81 (2d Cir.1998); Creative Gifts, Inc. v. UFO, 183 F.R.D. 568, 570 (D.N.M.1998); Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial, § 11:2293 (2005 rev.). Nonetheless, “[i]n unusual circumstances and for good cause, ... the failure to act timely will not bar consideration of objections [to a Rule 45 subpoena].” McCoy v. Southwest Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D.Cal.2002) (citations and internal quotation marks omitted); American Elec. Power Co. v. United States, 191 F.R.D. 132, 136 (S.D.Oh.1999); In re Motorsports Merchandise Antitrust Litigation, 186 F.R.D. 344, 349 (W.D.Va.1999); Alexander v. Federal Bureau of Investigation, 186 F.R.D. 21, 34 (D.D.C.1998); Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y.1996). Courts have found unusual circumstances where, for instance, the subpoena is overbroad on its face and exceeds the bounds of fair discovery and the subpoenaed witness is a non-party acting in good faith. McCoy, 211 F.R.D. at 385; American Electric Power Co., 191 F.R.D. at 136-37; Alexander, 186 F.R.D. at 34; Concord Boat Corp., 169 F.R.D. at 48. In light of the overbroad nature of the subpoena served by plaintiffs on nonparty KSA, the Court finds defendant’s objections to the subpoena have not been waived. Rule 45(c)(3)(A) sets forth the bases for a court to quash or modify a subpoena. In particular, it provides: [o]n timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance; (ii) requires" }, { "docid": "5025926", "title": "", "text": "In re DG Acquisition Corp., 151 F.3d 75, 81 (2d Cir.1998) (stating, relative to a belated claim of privilege, the Rule “require[s] the recipient of a subpoena to raise all objections at once, rather than in staggered batches, so that discovery does not become a ‘game’ ”). We need not accept the Government’s distinction, however, in order to consider its present objection. For the Government is correct that the district court may, “in unusual circumstances and for good cause,” consider an untimely objection to a subpoena. Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y.1996); see 9 James W. Moore et al., Moore’s Federal Practice § 45.04[2] (3d ed.2004). Certain factors may guide the district court’s discretion, for example, whether (1) the subpoena is “overbroad on its face and exceeds the bounds of fair discovery”; (2) the subpoenaed witness is a nonparty acting in good faith; and (3) counsel for the witness was in contact with counsel for the party issuing the subpoena prior to filing its formal objection. Concord Boat, 169 F.R.D. at 48 (internal quotation marks omitted); see 9 Moore et al. § 45.04[2]; Alexander v. FBI, 186 F.R.D. 21, 34-36 (D.D.C.1998) (no waiver where witness was non-party and subpoena was not limited to relevant materials). Here, the Government is a nonparty acting in good faith; the subpoena is broad enough at least to raise a question of over-breadth; and counsel for the Department acted promptly to contact counsel for the plaintiffs and to file his objections (though the State Department appears not to have acted with equal alacrity). Therefore, we cannot say the district court here abused its discretion in considering the Government’s objections. And so we are obliged to do the same. C. The Applicability of the Interpretive Presumption Rule 45(a)(1)(C) provides that every subpoena shall: [C]ommand each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person .... Fed.R.Civ.P. 45(a)(1)(C) (emphases added). The Government argues it is not" }, { "docid": "17282816", "title": "", "text": "disclaimers of coverage, and all other documents relating to any insurance policy issued or underwritten by Travelers which may provide coverage to any party named in the Complaint for the claims at issue. (Groark Aff., 9/15/04, Ex. 2 & 3). Travelers seeks to quash these subpoenas on the grounds that 1) MetLife may obtain the insurance policies in question from the public record or from Control directly, rather than placing an undue burden on a non-party, and 2) the non-public documents sought by the subpoenas are irrelevant, voluminous, and largely subject to privilege. (Pl.’s Mem. Supp. Mot. at 6-11). A. While the court interprets liberally the discovery provisions of the Federal Rules of Civil Procedure to encourage the free flow of information among litigants, limits do exist. For instance, Rule 26(c) provides that, upon a showing of good cause, the presiding court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.” Fed.R.Civ.P. 26(c). More pertinently, Rule 45(c)(3) commands that a court “shall” quash or modify a subpoena if the subpoena “subjects a person to undue burden.” Fed.R.Civ.P. 45(c)(3)(A)(iv). The burden of persuasion in a motion to quash a subpoena is borne by the movant. United States v. Int’l Bus. Mach. Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979); see 9 Wright & Miller, Federal Practice and Procedure § 2449 at p. 46 (1995). An evaluation of undue burden requires the court to weigh the burden to the subpoenaed party against the value of the information to the serving party. Whether a subpoena imposes an “undue burden” depends upon “such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” IBM, 83 F.R.D. at 104. However, courts also give special weight to the burden on non-parties of producing documents to parties involved in litigation. See Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir.1998) (“concern for the unwanted burden thrust upon non-parties is a" }, { "docid": "7086222", "title": "", "text": "objections are asserted within the fourteen-day time frame. See, e.g., Tuite v. Henry, 98 F.3d 1411, 1416 (D.C.Cir.1996); DG Acquisition Corp. v. Dabah, 151 F.3d 75, 81 (2nd Cir.1998). In this case, Wausau provided MSBAIT with a privilege log on September 9, 1998, which is certainly within a reasonable time as required under Rule 45(d)(2) (the fourteen day objection period only having expired on September 4, 1998), and as a result, Wausau did not waive its right to object to the subpoena. III. The Three Documents At Issue Are Protected By The Work Product Privilege The work product privilege is an important limitation on the scope of discovery. It exists so that one party does not gain an unfair advantage over another party by learning the other party’s counsel’s strategies and legal theories. Allendale Mut. Ins. Co. v. Bull Data Systems, Inc., 152 F.R.D. 132, 135 (N.D.Ill.1993). “The work product privilege is designed to protect material ‘prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative....’” Id. (quoting Fed.R.Civ.P. 26(b)(3)). Significantly here, the “mental impressions, conclusions, opinions, or legal theories” of an attorney or other party representative are “nearly absolutely protected” and are discoverable only in “very rare and extraordinary circumstances.” Ferrell v. United States Dept. of Housing and Urban Development, 177 F.R.D. 425, 431 (N.D.Ill.1998); Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947). “Although Rule 26 makes ‘ordinary’ work-product accessible where there is substantial need, the Rule specifically protects ‘opinion’ work-product from disclosure even in the face of undue hardship.” Ziemack v. Centel Corp., 1995 WL 314526 (N.D.Ill.1995) (quoting Nye v. Sage Products, Inc., 98 F.R.D. 452, 454 (N.D.Ill.1982)). . “ ‘Opinion’ work-product includes documents revealing mental impressions, conclusions, opinions or legal theories.” Ziemack at *6 (citing FED. R.CIV.P. 26(b)(3)); see generally Hickman, 329 U.S. at 511, 67 S.Ct. 385. Wausau has met its burden of showing that all three of the documents at issue constitute opinion work product, and that they are entitled to protection from disclosure. As to the" }, { "docid": "23589631", "title": "", "text": "certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery maybe had only on specified terms and conditions. Fed.R.Civ.P. 26(c). Rule 45 provides a corresponding level of protection for persons subject to subpoena. 9A Wright & Miller, Federal Practice and Procedure: Civil 2d § 2449, at p. 75 (1995). Rule 45(c), entitled “Protection for Persons Subject to Subpoenas,” in relevant part states: (c)(2)(B) ... a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection and copying of any or all of the designated materials or the premises. (c)(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (iv) subjects a person to undue burden. Fed.R.Civ.P. 45(c)(2)(B), (c)(3)(A)(iv). The failure to serve written objections to a subpoena within the time specified by Rule 45(c)(2)(B) typically constitutes a waiver of such objections. United States v. International Bus. Mach. Corp., 70 F.R.D. 700, 701-02 (S.D.N.Y.1976); see Krewson v. City of Quincy, 120 F.R.D. 6, 7 (D.Mass. 1988) (citing cases from various district courts). “In unusual circumstances and for good cause, however, the failure to act timely will not bar consideration of objections.” Semtek Int’l, Inc. v. Merkuriy Ltd., No. 3607 DRH, 1996 WL 238538, at *2 (N.D.N.Y. May 1, 1996); see IBM, 70 F.R.D. at 702 & n. 9; Angell v. Shawmut Bank Conn. Nat’l Assoc., 153 F.R.D. 585, 590 (M.D.N.C.1994); In re Goodyear Tire & Rubber Co. Sec. Litig., 1991 WL 172930, at" }, { "docid": "5282433", "title": "", "text": "discovery against the burden imposed on the person ordered to produce documents, and the status of a person as a non-party is a factor that weighs against disclosure. See Katz v. Batavia Marine & Sporting Supplies, 984 F.2d 422, 424 (Fed. Cir.1993); Echostar Communications Corp. v. The News Corporation Ltd., 180 F.R.D. 391, 394 (D.Colo.1998); see also Concord Boat, 169 F.R.D. at 49; Fed.R.Civ.P. 45(c)(2)(B). Demonstrating relevance is the burden of the party seeking discovery. See Katz, 984 F.2d at 424-25; Echostar Communications, 180 F.R.D. at 394; Compaq Computer Corp. v. Packard Bell Electronics, Inc., 163 F.R.D. 329, 335 (N.D.Cal.1995). B. Whether Newport timely served written objections to the subpoena The Government first argues that Newport waived its objections to the January 20 subpoena because it failed to serve written objections “within 14 days after service of the subpoena,” as required by Rule 45. The Government maintains that Newport did not serve its objections, or otherwise contact it regarding the subpoena, until March 1. The Government further maintains that Newport’s failure to comply with the time limitations in Rule 45 has prejudiced it because it expected to receive the requested documents by mid-February, well before the April 15, 1999 deadline for the exchange of the parties’ expert reports. Accordingly, the Government contends that Newport’s objections should not be considered. Newport responds that its failure to act timely should not bar consideration of its objections. First, Newport notes that it has had repeated contacts with the Government concerning its production of documents for the last three years, having responded to 110 IRS document requests and having supplied documents for three other discovery subpoenas. Indeed, when Newport received the January 20 subpoena, it was still attempting to respond to the documents requested in the January 6 subpoena and counsel for Newport and the Government were still discussing Newport’s objections to the January 6 subpoena. Second, Newport states that the Government has been notified repeatedly that, with only 40 employees, it has only a small staff available to search for documents and respond to subpoenas and similar requests. Accordingly, it maintains that the" }, { "docid": "14586494", "title": "", "text": "a person who is not a party ... to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business ..., or (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) subjects a person to undue burden. Fed.R.Civ.P. 45(e)(3)(A). Additionally, in the event the subpoena “requires disclosure of a trade secret or other confidential research, development, or commercial information, ... the court may ... quash ... the subpoena....” Fed.R.Civ.P. 45(c)(3)(B). As an initial matter, the party who moves to quash a subpoena has the “burden of persuasion” under Rule 45(c)(3). Travelers Indem. Co. v. Metropolitan Life Insur. Co., 228 F.R.D. 111, 113 (D.Conn.2005); Concord Boat Corp., 169 F.R.D. at 48; United States v. IBM, 83 F.R.D. 97, 104 (S.D.N.Y.1979). Here, defendant seeks to quash or, in the alternative, to modify the Rule 45 subpoena on relevancy grounds, contending that the information sought is irrelevant in light of paragraph 5 of the Import Broker Agreement, and the subpoena is generally overly broad since it requests information for a ten year period of time, whereas the Import Broker Agreement covers only three years, and seeks information about KSA’s commercial business with other nonparties. Although irrelevance is not among the litany of enumerated reasons for quashing a subpoena found in Rule 45, courts have incorporated relevance as a factor when determining motions to quash a subpoena. Goodyear Tire & Rubber Co. v. Kirk’s Tire & Auto Servicenter, 211 F.R.D. 658, 662 (D.Kan. 2003). Specifically, under Rule 45(c)(3)(A), “[a]n evaluation of undue burden requires the court to weigh the burden to the subpoenaed party against the value of the information to the serving party[,]” Travelers Indem. Co., 228 F.R.D. at 113, and, in particular, requires the court to consider: ‘such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.’ Id. (quoting IBM, 83 F.R.D. at 104). Here, plaintiffs explain the" } ]

[ { "docid": "6401904", "title": "", "text": "particular song to a songwriter now dead and thereafter to his heirs over an almost thirty (30) year period. If the Lees had this information readily available or even easily identifiable, this Court cannot understand why Plaintiffs counsel felt to ascertain the amount would be a “nightmare.” See supra note 7. Clearly, the amount to be divided is not known, was not identified in the extensive district court experience and must be reconstructed requiring factual determinations by the district court. The accounting goes far beyond the “ministerial or mechanical” as envisioned by the exception to a final judgment as stated in Parks, 753 F.2d at 1401. Plaintiff’s counsel himself states: “It is a nightmare” and speaks with the Court about the use of a Magistrate or Special Master to determine the exact amount owed. Considering the foregoing, this Court concludes that Plaintiff has not waived her claim for damages and in fact, still seeks money damages that have yet to be determined by the district court. Further, the task of accounting for one-half of the royalties paid for the song “Let the Good Times Roll” from 1956 to present cannot be classified as merely “ministerial” or “mechanical”; therefore, the judgment is not final. Accordingly, this Court finds that it is without jurisdiction in this matter and therefore, DISMISSES the appeal. DISMISSED. . Recognizing that Federal Rule of Civil Procedure 59 and 60 may be used to correct similar errors, this Circuit has established a bright line rule for distinguishing Rule 59 motions from Rule 60 motions. If a motion is served within ten (10) days following the entry of judgment and draws into the question the correctness of the judgment, it will be treated as a Rule 59 motion for purposes of determining the timing of notices of appeal from the judgment. Prudential Bache, 966 F.2d at 984. . Relevant portions of Plaintiff-Appellant's counsel’s oral argument are as follows: At all times after trial the opening statement to the end of closing arguments, in chambers with Judge Sear in that passage that I’m being quoted on about the nightmare, we" } ]

[ { "docid": "23059947", "title": "", "text": "TO PAY to the Clerk of Court the sum of $500.00 EACH for their willful refusal to comply with the court’s orders; additionally defendant Brown and attorney Bender, jointly and severally, are DIRECTED TO PAY to the Clerk of Court the reasonable travel expenses and standard hourly fees incurred by plaintiffs for the services of Mr. John Welsch, MAI, to the extent he was unable to inspect defendants’ properties, within 14 days of the filing by plaintiffs of a verified statement itemizing said expenses and fees.... App. at 659-60. The court acknowledges that “the amount of this sanction remains unquantified” and that, generally, “an order is not final until it is reduced to a determinate amount” (Maj. op. at 1259). It relies, however, on a venerable exception to the general rule known as the Forgay-Conrad doctrine, see Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848), which is applicable to cases in which the order appealed from leaves nothing to do but a “ministerial act.” The court cites Apex Fountain Sales, Inc. v. Kleinfeld, 27 F.3d 931 (3d Cir.1994) as authority for its conclusion that this is such a case. In Apex, this court held that an order establishing liability and ordering an accounting, but not quantifying the amount of money to be paid the plaintiff by the defendant, was not a final order. We made clear that the word “ministerial” in the context of the Forgay-Conrad doctrine refers to “mechanical” acts, like mathematical calculations, about which there can be no dispute. Only when the act remaining to be done is “ministerial” in this sense can an appellate court proceed with assurance that there will “be no likelihood of [a] further appeal.” Apex, 27 F.3d at 936 (quotation omitted). We stressed the importance of the considerations behind insisting on quantification of damages, quoting from the Supreme Court’s decision in Van Cauwenberghe v. Biard, 486 U.S. 517, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988): “Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system." }, { "docid": "22912430", "title": "", "text": "Cir.1978); Hattersley v. Bollt, 512 F.2d 209, 213-14 (3d Cir.1975); cf. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 216 n. 8, 97 S.Ct. 1782, 1789 n. 8, 52 L.Ed.2d 261 (1977). For if the further proceedings in the trial court are quite unlikely to make the appeal moot or even affect the issues on appeal, there is no reason to delay the appeal while they are resolved; and the delay may be a source of cost. The line between the ministerial and the substantial is a very dim one, but we think this case falls on the ministerial side, if barely. It is not like Strey v. Hunt Int’l Resources Corp., 696 F.2d 87 (10th Cir.1982) (per curiam), where the order that was sought to be appealed determined the total damages of the class but did not indicate how they were to be divided among the members, or Norwood v. Harrison, 563 F.2d 722 (5th Cir.1977) (per curiam), where the order fixed the damages but did not say who had to pay them. Here all that remains to be done in the district court is for the members of the class to submit receipts or other evidence showing what they have paid or still owe the institutions; and the district judge made clear that the defendant agencies would be jointly and severally liable to the class members for whatever amounts are shown to be due. See 557 F.Supp. at 1290. Although computing the money owed each class member is not automatic, it is mechanical, is unlikely to engender dispute or controversy, and will require no analytic or judgmental determinations that might affect the questions now before us or give rise to other appealable questions; in particular, the district court will not have the problem of dividing up a pie among competing claimants whose claims in the aggregate exceed the pie. But at the same time, the processing of the individual class members’ claims will not be costless, so that if this appeal is allowed and the state persuades us that no damages should be awarded, an expensive computation" }, { "docid": "14423181", "title": "", "text": "pay and other appropriate relief’); Hattersley v. Bollt, 512 F.2d 209, 213 (3d Cir.1975) (judgment appealable even though “does not ... assess the precise monetary amount owed_ because the judgment fixes ... ultimate liability and clearly establishes the parameters of that liability”); Massachusetts Casualty Ins. Co. v. Forman, 469 F.2d 259, 260 (5th Cir.1972) (appealable where order “amounted to a final disposition of the primary issue then existing between the parties”); See United States v. Brook Contracting Corp., 759 F.2d 320, 323 (3d Cir.1985) (same). Judge Cooke’s 1988 order is couched in terms of specific damage calculations. Many of the matters to which Michigan now objects were specifically settled in the 1988 order. If remaining points of calculation would have prevented an appeal in 1988, similar points should have prevented the very 1991 appeal that Michigan has now taken, and there has been no intimation from any party or from the court that this appeal is improper. We note that upon our affirmance of the district court, there”will still remain similar calculations to be made. The Special Master’s report of January 1991 contains no final amount. It simply recommends “that Constance Anderson’s HEP be carried forward to [Deputy Warden XII] and that she be compensated for back pay and front pay on that basis.” The district court’s affirmance of January 28, 1991 also contains no dollar amount. It simply states that it “accepts the Report and Recommendation submitted by Special Master Mann.” Indeed, the district court docket sheet characterizes the appeal as “interlocutory,” and Michigan’s notice of appeal is not styled as an appeal from a final disposition of the case, but rather from the specific order of March 28, 1991. The Special Master also noted that the key issue in this case had been resolved in 1988, and that the remaining matters were ministerial. It stated at page 16 of a ruling on March 26, 1990 (R. 484): “[T]he [district court] found that Gerald Hofbauer was a comparable male.... Thus, no substantive legal issues remained unresolved. (Emphasis in original.) Since the Court’s order in January of 1988, counsel for" }, { "docid": "3872421", "title": "", "text": "there would be no likelihood of further appeal.” Apex Fountain Sales, Inc. v. Kleinfeld, 27 F.3d 931, 936 (3d Cir.1994) (quotations omitted); Goodman v. Lee, 988 F.2d 619, 626-27 (5th Cir.1993) (per curiam) (outlining exception to final order doctrine where calculation of damages is ministerial and pursuant to a predetermined procedure); Pratt v. Petroleum Prod. Management, Inc. Employee Sav. Plan & Trust, 920 F.2d 651, 656-57 (10th Cir.1990) (where prejudgment interest readily ascertainable from complaint, appellate jurisdiction was proper). That is, when the amount of damages awarded pursuant to a judgment on liability “speaks for itself,” we can assume jurisdiction under an exception to the final order doctrine; however, if calculating damages would be complicated and the possible subject of a separate and future appeal, then we cannot assume appellate jurisdiction over the issue of liability. See Goodman, 988 F.2d at 626. At oral argument, Albright’s counsel changed her position and requested that we take jurisdiction because Albright has been waiting for years to receive the benefits awarded below. While we are sympathetic to Mr. Albright’s plight, we must strictly adhere to the procedural limitations which define the scope of our jurisdiction. Here, the calculation of the disability benefits owed to Albright is not likely to be a ministerial and uncontroversial process. That is, both determining the correct amount of monthly benefits and the proper deductions for other income benefits may prove to be complicated and disputed calculations. Thus, as we cannot confidently determine that there will be no further litigation on the issue of damages, the final order doctrine precludes us from assuming jurisdiction over this appeal. We also refuse to assume jurisdiction over this appeal on the ground that considerations of justice demand that we depart from the general rule outlined in the final order doctrine. The doctrine which would justify such a departure from the general rule is the “practical (or pragmatic) finality” exception to the final order doctrine. That exception provides that a court may assume jurisdiction where “the danger of injustice by delaying appellate review outweighs the inconvenience and costs of piecemeal review.” Bender v." }, { "docid": "21411677", "title": "", "text": "The Order was not a clearly interlocutory decision. It effectively resolved the case, disposing of all the issues which Copeland raised below and now appeals. The Order identified the $244,814.30 subject to SRS’ subrogation right and rejected each of Copeland’s arguments for reducing SRS’ subrogation share or assessing SRS a 40% attorney fee. FirsTier requires this court to determine whether the Order would have been appealable if immediately followed by the entry of judgment. A decision is appealable only if it is final, meaning it “leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). This court stated in Albright v. UNUM Life Insurance Co. of America, 59 F.3d 1089 (10th Cir.1995): [T]he touchstone of a final order is “a decision by the court that a party shall recover only a sum certain.” ... [However,] “an order is final even if it does not reduce the damages to a sum certain if the order sufficiently disposes of the factual and legal issues and any unresolved issues are sufficiently ministerial that there would be no likelihood of further appeal.” That is, when the amount of damages awarded pursuant to a judgment on liability “speaks for itself,” we can assume jurisdiction under an exception to the final order doctrine; however, if calculating damages would be complicated and the possible subject of a separate and future appeal, then we cannot assume appellate jurisdiction____ Id. at 1092-93 (quoting Fed.R.Civ.P. 58 (emphasis added) and Apex Fountain Sales, Inc. v. Kleinfeld, 27 F.3d 931, 936 (3d Cir.1994)) (citations and footnotes omitted). The Al-bright court determined it did not have jurisdiction because the calculations not completed in the appealed order were “not likely to be ... ministerial and uncontroversial.” Id. at 1093. Rather, they were likely to be “complicated and disputed.” Id. The court acknowledged, however, that “there may be eases in which the lack of a sum certain will not preclude appellate review.” Id, at 1094. The case at bar is one such case. The April 12 Order “spoke" }, { "docid": "23243440", "title": "", "text": "amount of “the profits [plaintiff] earned in each year, beginning with the first act of infringement in 1970 and ending with the first day of trial testimony in this case” was not final because the damage calculation \"cannot reasonably be characterized as merely ministerial.... [T]he parties here have a long history of contentious litigation, and there is a substantial likelihood that 'one or both parties will dispute the ultimate amount of damages awarded....’ ”); Apex Fountain Sales, Inc. v. Kleinfeld, 27 F.3d 931, 934, 936 (3d Cir.1994) (holding that a civil contempt order directing that an accounting be performed to determine the net profit the plaintiff would have realized absent the defendant's contemptuous conduct was not final, because \"no judgment containing a final dollar amount ha[d] been entered” and because the factual determination of net profit \"will not be easily reached”). In the instant matter, however, the analysis of our appellate jurisdiction is not limited by the face of the March 8, 2000 and April 5, 2000 orders, as subsequent, post-appeal proceedings bear directly on our § 1291 finality calculus. See Aluminum Co. of America v. Beazer East, Inc., 124 F.3d 551, 557 (3d Cir. 1997) (\"Even if the appeals court would have lacked jurisdiction at the time an appeal was filed, the court has jurisdiction if, as a result of subsequent events, there are no longer any claims left to be resolved by the district court.”). Following the District Court’s April 5, 2000 order, the only claim's left to be resolved were tire application of the damage formula and the reduction of damages to a sum certain. During the pendency of this appeal before this Court, the District Court actively managed the matter in order to arrive at a precise damage figure. On November 8, 2000, the Magistrate Judge submitted a report and recommendation fixing the damages New AC owed to GM not only under the April 5, 2000 order, but also under a subsequent May 11, 2000 order holding New AC in civil contempt for failing to comply with the April 5, 2000 directive to cease use of" }, { "docid": "18818197", "title": "", "text": "the factual and legal issues and [if] any unresolved issues are sufficiently ‘ministerial’ that there would be no likelihood of further appeal.” Polychrome Int’l Corp. v. Krigger, 5 F.3d 1522, 1544 n. 52 (3d Cir.1993). Thus, in Polychrome, we held that we had jurisdiction of the government’s appeal of a district court order invalidating a tax regulation, even though the court did not state the amount of refund to which the plaintiffs were entitled. Presumably, the court viewed the determination of the amount of taxes paid by each plaintiff as a ministerial calculation. Accord United States v. Brook Contracting Corp., 759 F.2d 320, 322-23 (3d Cir.1985); Hatters-ley v. BolM, 512 F.2d 209, 213-14 (3d Cir. 1975). The district court’s order in this case does not fall within the “ministerial” exception to the final judgment rule. The record of this litigation indicates that the determination of the “net profit which would have been realized by Apex” absent the contemptuous acts will not be easily reached. See Goodman v. Lee, 988 F.2d 619, 625 (5th Cir.1993) (when calculating damages would be a “nightmare,” judgment was not final). While in some circumstances this might be a simple calculation, in this situation it has become a highly contested dispute about Kearney and Apex sales over the past 10 years. Further, before the order is sufficiently final for review purposes the district court will undoubtedly make particularized findings indicating specifically how the damages are actually linked to the contemptuous behavior it found. It is a general principle that “[t]he relief granted in civil contempt proceedings is compensatory ... [and] must not exceed the actual damages caused the offended party by a violation of the court’s order.” Quinter v. Volkswagen of America, 676 F.2d 969, 975 (3d Cir.1982) (citations omitted); see also Gregory v. Depte, 896 F.2d 31, 34 (3d Cir.1990) (compensatory fine “must not exceed the actual .damages caused the offended party and must be based on evidence of a complainant’s actual loss” (citations omitted)). The numbers, even if the parties had agreed with the accountant’s report regarding total Kearney sales of the “infringing fountains,”" }, { "docid": "18818195", "title": "", "text": "1276-77 (3d Cir.1993); In re Colon, 941 F.2d 242, 246 (3d Cir.1991); Frangos v. Doering Equip. Corp., 860 F.2d 70, 72 (3d Cir.1988); see also Napier v. Thirty or More Unidentified Federal Agents, Employees or Officers, 855 F.2d 1080, 1089-90 (3d Cir.1988) (Rule 11 sanctions may not be appealed until judgment entered on the amount). Kearney argues that the order is final because determining the precise amount of money due is a “ministerial” or “mechanical” act and thus the order is “final” under what is known as the Forgay-Conrad doctrine. See Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848); Parks v. Paukovic, 753 F.2d 1397, 1401 (7th Cir.) (“if the determination of damages will be mechanical and un-eontroversial, so that the issues the defendant wants to appeal before that determination is made are very unlikely to be mooted or altered by it — in legal jargon, if only a ‘ministerial’ task remains for the district court to perform — then immediate appeal is allowed”), cert. denied, 473 U.S. 906, 105 S.Ct. 3529, 87 L.Ed.2d 653 (1985); 9 James Wm. Moore et al., Moore’s Federal Practice ¶ 110.11 (2d ed. 1994). The district court seems to have viewed the judgment in this way, noting that it had “resolved the legal rights of the parties and provided the formula for calculating the amount of the judgment; determining the dollar amount of damages is merely a ministerial act.” App. at 116 n. 1; see also App. at 123 (“we specifically noted that our July order resolved the legal rights of the parties, provided the formula for calculating the amount of the contempt judgment, and rejected any assertion that the order was interlocutory or otherwise unappealable”). In Cromaglass Corp. v. Perm, 500 F.2d 601, 605 (3d Cir.1974) (in banc), we described the Forgay-Conrad doctrine as permitting appellate jurisdiction for a “judgment which is final except for ministerial acts.” While not mentioning Forgay, we have continued to recognize that an order is final even if it does not reduce the damages to a sum certain if “the order sufficiently disposes of" }, { "docid": "13084141", "title": "", "text": "an accounting of Marshak’s profits. Marshak contends that we have jurisdiction under the final order rule of 28 U.S.C. § 1291, but we do not agree. A-final order is one that “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). A finding of liability that does not also specify damages is not a final decision. See, e.g., Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); Sun Shipbldg. & Dry Dock Co. v. Benefits Rev. Bd., 535 F.2d 758, 760 (3d Cir.1976). Although the practical finality rule, also known as the For-gay-Conrad doctrine, permits appellate review of an order that is not technically final but resolves all issues that are not purely ministerial, see Forgay v. Conrad, 47 U.S. (6 How.) 201, 204-05, 12 L.Ed. 404 (1848); Cromaglass Corp. v. Ferm, 500 F.2d 601, 605 (3d Cir.1974) (en banc), the accounting at issue in this case does not come within that rule. Our decision in Apex Fountain Sales, Inc. v. Kleinfeld, 27 F.3d 931 (3d Cir.1994), a trademark infringement ease, is apposite. In Apex Fountain Sales, the District Court entered a contempt order that, among other things, ordered an accounting of the net profits realized from sale of the infringing items. We held that the order was not reviewable under the Forgay-Conrad doctrine because the determination of net profits would not be easily reached. See id. at 936. In Goodman v. Lee, 988 F.2d 619 (5th Cir.1993), the Fifth Circuit addressed circumstances similar to those with which we are confronted. In that case, Shirley Goodman sued the heirs of her former recording partner, Audrey Lee, for copyright ownership rights to their 1956 hit song, “Let the Good Times Roll.” The jury found in favor of Goodman, and the District Court ordered the registrar of copyrights to correct the records of the copyright office to reflect Goodman’s ownership. Furthermore, the Court ordered Lee’s heirs to account to Goodman for one-half of all royalties paid over the" }, { "docid": "18818198", "title": "", "text": "calculating damages would be a “nightmare,” judgment was not final). While in some circumstances this might be a simple calculation, in this situation it has become a highly contested dispute about Kearney and Apex sales over the past 10 years. Further, before the order is sufficiently final for review purposes the district court will undoubtedly make particularized findings indicating specifically how the damages are actually linked to the contemptuous behavior it found. It is a general principle that “[t]he relief granted in civil contempt proceedings is compensatory ... [and] must not exceed the actual damages caused the offended party by a violation of the court’s order.” Quinter v. Volkswagen of America, 676 F.2d 969, 975 (3d Cir.1982) (citations omitted); see also Gregory v. Depte, 896 F.2d 31, 34 (3d Cir.1990) (compensatory fine “must not exceed the actual .damages caused the offended party and must be based on evidence of a complainant’s actual loss” (citations omitted)). The numbers, even if the parties had agreed with the accountant’s report regarding total Kearney sales of the “infringing fountains,” will not speak for themselves. Although we do not express any opinion on the merits, we question whether the district court intended to assess damages based on the sales of all Moselle, Ameretta and Grand Chablis fountains since 1984, because for at least some of that period Kearney was marketing these fountains with the acquiescence, if not the explicit approval, of the design panel and the district court. A party cannot be held in contempt for acts permitted by a court order simply because that order was later reversed or disapproved, for it is the knowledge of and disobedience of an existing court order which are the predicates for any contempt sanction. See United States v. Sarbello, 985 F.2d 716, 727 (3d Cir.1993). In short, while it appears that there were sales by Kearney as to which the district court’s contempt order might well be found to be justified, that order is neither final nor reviewable until the court details which of Kearney’s sales had a “sufficiently specific nexus” to the violations and the precise" }, { "docid": "22546137", "title": "", "text": "any other person’s, compliance with the injunction. It simply enjoins Quinteros, and anyone legally associated with him, from violating its terms. We construe the terms of consent judgments strictly. See Harley-Davidson, Inc. v. Morris, 19 F.3d 142, 148 (3d Cir.1994). We “discern the scope of a consent judgment by reviewing] what is within the four corners of the consent, not by reference to what might satisfy the purposes of one of the parties to it.” Id. (internal quotation marks omitted). Accordingly, because the District Court did not find any acts on the part of Quinteros that violated the terms of the court’s order, Quinteros’s liability may only be established on an aiding and abetting theory or on some rule of imputation. The District Court reasoned, and Lou-Ann urges, that a finding of contempt as to Quinteros is appropriate because of his business association with Miraglia. The court found that the fact that Quinteros and Miraglia shared profits supported the imputation of contempt liability. Neither the District Court nor Lou-Ann has offered any authority for the proposition that the business association between two individuals, standing alone, is a sufficient ground for holding one in contempt for acts committed by another. Nor have we found any such authority. One with knowledge of a court order who abets another in violating the order is surely in contempt. See Roe v. Operation Rescue, 54 F.3d 133, 140 (3d Cir.1995); Quinter v. Volkswagen of Am., 676 F.2d 969, 972 (3d Cir.1982). As we have stated: “The law does not permit the instigator of contemptuous conduct to absolve himself of contempt liability by leaving the physical performance of the forbidden conduct to others.” Roe v. Operation Rescue, 919 F.2d 857, 871 (3d Cir.1990). But the District Court did not find that Quinteros instigated, endorsed, or ratified Miraglia’s violations. Nor is there any evidence of record that would permit a reasonable fact-finder to so conclude. Quite the contrary: the District Court found that Quinteros exhorted Miraglia to cease violating the order, and the record plainly supports this finding. We therefore reject the argument that Quinteros’s business association" }, { "docid": "23201000", "title": "", "text": "the record indicates that the district court abused its discretion in balancing the legitimate and competing interests of plaintiffs and defendants. Further, we do not think that actual trespass is a necessary precondition for holding McMonagle in civil contempt. The law does not permit the instigator of contemptuous conduct to absolve himself of contempt liability by leaving the physical performance of the forbidden conduct to others. As a result, those who have knowledge of a valid court order and abet others in violating it are subject to the court’s contempt powers. Cf. Quinter v. Volkswagen of America, 676 F.2d 969, 972 (3d Cir.1982); Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 833 (2d Cir.1930). McMonagle was personally served with a copy of the TRO on June 30,1988. According to the record, he nonetheless participated in the protests at WSC on July 5 and at NEWC on July 6. McMonagle was indeed identified as one of the leaders of these demonstrations. With respect to the July 5 protest, one witness testified that McMonagle, wearing an Operation Rescue armband, stood across from WSC where he conferred with other protesters and with various police officials. Testimony regarding the July 6 demonstration at NEWC indicated that McMonagle, wearing a headset and standing with two men wearing Operation Rescue armbands, gave instructions to protesters and spoke with police officials. The district court determined that the above facts, which are sufficient to adjudge McMonagle in civil contempt, were established by clear and convincing evidence. This finding is not clearly erroneous, and we therefore affirm the court’s contempt order. The conduct of Krail, although not as egregious as that of McMonagle, was nonetheless a violation of the TRO. Krail points out that she is not a party to the underlying lawsuit and was not named in the district court’s TRO. She asserts, further, that there is insufficient evidence of her knowledge of the court’s TRO and that the evidence of her alleged violation of the TRO is far too imprecise to justify her being held in contempt. “A person who is not a party to a proceeding" }, { "docid": "3872420", "title": "", "text": "(“where assessment of damages or awarding of other relief remains to be re solved,” judgments “have never been considered to be ‘final’ within the meaning of 28 U.S.C. § 1291”); McKinney v. Gannett Co., Inc., 694 F.2d 1240, 1246 (10th Cir.1982) (“Judgments which, as here, merely determine liability are not final.”). UNUM responded to Albright’s argument by maintaining that the final order doctrine should be given a “practical rather than technical construction,” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949), and that in the instant ease, the district court has granted the only remedy sought. While not explicitly contending that this case fits into a longstanding exception to the general rule that a sum certain must be calculated before we can assume appellate jurisdiction, UNUM’s argument echoes the principle that “an order is final even if it does not reduce the damages to a sum certain if the order sufficiently disposes of the factual and legal issues and any unresolved, issues are sufficiently ministerial that there would be no likelihood of further appeal.” Apex Fountain Sales, Inc. v. Kleinfeld, 27 F.3d 931, 936 (3d Cir.1994) (quotations omitted); Goodman v. Lee, 988 F.2d 619, 626-27 (5th Cir.1993) (per curiam) (outlining exception to final order doctrine where calculation of damages is ministerial and pursuant to a predetermined procedure); Pratt v. Petroleum Prod. Management, Inc. Employee Sav. Plan & Trust, 920 F.2d 651, 656-57 (10th Cir.1990) (where prejudgment interest readily ascertainable from complaint, appellate jurisdiction was proper). That is, when the amount of damages awarded pursuant to a judgment on liability “speaks for itself,” we can assume jurisdiction under an exception to the final order doctrine; however, if calculating damages would be complicated and the possible subject of a separate and future appeal, then we cannot assume appellate jurisdiction over the issue of liability. See Goodman, 988 F.2d at 626. At oral argument, Albright’s counsel changed her position and requested that we take jurisdiction because Albright has been waiting for years to receive the benefits awarded below. While we are sympathetic to Mr." }, { "docid": "13084144", "title": "", "text": "an • appealable final order. Id. A similar result was reached in Zwack v. Kraus Bros. & Co., 237 F.2d 255 (2d Cir.1956). There, a Hungarian firm sought injunctive relief against its United States distributor to enforce its trademark, as well as damages and an accounting of profits. The District Court held the distributor liable but referred the matter to a special master for an accounting of profits. The Second Circuit held that the reference to the special master to determine damages rendered the entire order interlocutory. See id. at 261. In this case, as in the cases noted above, the accounting cannot reasonably be characterized as merely ministerial. The District Court ordered Marshak “to account to Treadwell for the profits he earned in each year, beginning with the first act of infringement in 1970 and ending with the first day of trial testimony in this case.” App. at 87. As in Apex Fountain Sales, the parties here have a long history of contentious litigation, and there is a substantial likelihood that “one or both parties will dispute the ultimate amount of damages awarded, leading to a second appeal. This would be contrary to the federal judiciary’s general policy against piecemeal litigation.” Apex Fountain Sales, 27 F.3d at 935. We are aware that the District Court, in denying Treadwell’s request that a special master be appointed, expressed the opinion that “the accounting will not be complicated or exceptional,” App. at 1687 n. 2, but that statement was made in a notably different context. An accounting may seem simple enough to persuade a District Court that the appointment of a special master is not necessary and still be far from ministerial in the sense relevant here. We must therefore dismiss Marshak’s appeal insofar as it contests the portion of the district court order requiring an accounting. III. Turning to the merits of the issues over which we have jurisdiction, we first consider Marshak’s arguments relating to Tread-well’s fraudulent procurement defense and counterclaim. A. Marshak argues that the fraudulent procurement defense and counterclaim are time-barred. Relying chiefly on our decision in Beauty" }, { "docid": "18818196", "title": "", "text": "3529, 87 L.Ed.2d 653 (1985); 9 James Wm. Moore et al., Moore’s Federal Practice ¶ 110.11 (2d ed. 1994). The district court seems to have viewed the judgment in this way, noting that it had “resolved the legal rights of the parties and provided the formula for calculating the amount of the judgment; determining the dollar amount of damages is merely a ministerial act.” App. at 116 n. 1; see also App. at 123 (“we specifically noted that our July order resolved the legal rights of the parties, provided the formula for calculating the amount of the contempt judgment, and rejected any assertion that the order was interlocutory or otherwise unappealable”). In Cromaglass Corp. v. Perm, 500 F.2d 601, 605 (3d Cir.1974) (in banc), we described the Forgay-Conrad doctrine as permitting appellate jurisdiction for a “judgment which is final except for ministerial acts.” While not mentioning Forgay, we have continued to recognize that an order is final even if it does not reduce the damages to a sum certain if “the order sufficiently disposes of the factual and legal issues and [if] any unresolved issues are sufficiently ‘ministerial’ that there would be no likelihood of further appeal.” Polychrome Int’l Corp. v. Krigger, 5 F.3d 1522, 1544 n. 52 (3d Cir.1993). Thus, in Polychrome, we held that we had jurisdiction of the government’s appeal of a district court order invalidating a tax regulation, even though the court did not state the amount of refund to which the plaintiffs were entitled. Presumably, the court viewed the determination of the amount of taxes paid by each plaintiff as a ministerial calculation. Accord United States v. Brook Contracting Corp., 759 F.2d 320, 322-23 (3d Cir.1985); Hatters-ley v. BolM, 512 F.2d 209, 213-14 (3d Cir. 1975). The district court’s order in this case does not fall within the “ministerial” exception to the final judgment rule. The record of this litigation indicates that the determination of the “net profit which would have been realized by Apex” absent the contemptuous acts will not be easily reached. See Goodman v. Lee, 988 F.2d 619, 625 (5th Cir.1993) (when" }, { "docid": "13084143", "title": "", "text": "29-year period between the time of the song’s release and the date of the judgment. The District Court did not reduce the award to a certain sum. On appeal, the Fifth Circuit acknowledged a line of cases in which appeal had been permitted prior to a final accounting because the accounting was viewed as “purely ‘ministerial’ and/or ‘mechanical.’” Id. at 626 (citing Winston Network v. Indiana Harbor Belt R. Co., 944 F.2d 1351 (7th Cir.1991); Parks v. Pavkovic, 753 F.2d 1397 (7th Cir.1985)). However, the Goodman Court concluded that the accounting in the case before it would not be purely ministerial: The award contemplates identifying royalties paid on one particular song to songwriter now dead and thereafter to his heirs over an almost thirty (30) year period.... Clearly, the amount to be divided is not known, was not identified in the extensive district court experience and must be reconstructed requiring factual determinations by the district court. Id. at 627. Therefore, the Court held that the judgment was not within the Forgay-Conrad rule and was not an • appealable final order. Id. A similar result was reached in Zwack v. Kraus Bros. & Co., 237 F.2d 255 (2d Cir.1956). There, a Hungarian firm sought injunctive relief against its United States distributor to enforce its trademark, as well as damages and an accounting of profits. The District Court held the distributor liable but referred the matter to a special master for an accounting of profits. The Second Circuit held that the reference to the special master to determine damages rendered the entire order interlocutory. See id. at 261. In this case, as in the cases noted above, the accounting cannot reasonably be characterized as merely ministerial. The District Court ordered Marshak “to account to Treadwell for the profits he earned in each year, beginning with the first act of infringement in 1970 and ending with the first day of trial testimony in this case.” App. at 87. As in Apex Fountain Sales, the parties here have a long history of contentious litigation, and there is a substantial likelihood that “one or both" }, { "docid": "23243439", "title": "", "text": "of liability is not immediately appealable. See United States v. F.&M. Schaefer Brewing Co., 356 U.S. 227, 233-34, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958); Sun Shipbuilding & Dry Dock Co. v. Benefits Review Bd., 535 F.2d 758, 760 (3d Cir.1976) (per curiam). Although the District Court’s April 5, 2000 order set forth a reasonably precise formula for the determination of damages (i.e., 10% of net profits during a specified period of time), so that one could characterize the unperformed damage calculation as a merely mechanical or ministerial act that would not preclude our exercise of appellate jurisdiction, see Parks v. Pavkovic, 753 F.2d 1397, 1402 (7th Cir.1985) (determining that § 1291 finality exists when \"computing the money owed ... is unlikely to engender dispute or controversy, and will require no analytic or judgmental determinations that might ... give rise to other appealable questions”), our precedent squarely forecloses us from doing so. See Marshak v. Treadwell, 240 F.3d 184, 191 (3d Cir.2001) (holding that an order awarding the defendants damages for trademark infringement in the amount of “the profits [plaintiff] earned in each year, beginning with the first act of infringement in 1970 and ending with the first day of trial testimony in this case” was not final because the damage calculation \"cannot reasonably be characterized as merely ministerial.... [T]he parties here have a long history of contentious litigation, and there is a substantial likelihood that 'one or both parties will dispute the ultimate amount of damages awarded....’ ”); Apex Fountain Sales, Inc. v. Kleinfeld, 27 F.3d 931, 934, 936 (3d Cir.1994) (holding that a civil contempt order directing that an accounting be performed to determine the net profit the plaintiff would have realized absent the defendant's contemptuous conduct was not final, because \"no judgment containing a final dollar amount ha[d] been entered” and because the factual determination of net profit \"will not be easily reached”). In the instant matter, however, the analysis of our appellate jurisdiction is not limited by the face of the March 8, 2000 and April 5, 2000 orders, as subsequent, post-appeal proceedings bear directly on" }, { "docid": "13084142", "title": "", "text": "that rule. Our decision in Apex Fountain Sales, Inc. v. Kleinfeld, 27 F.3d 931 (3d Cir.1994), a trademark infringement ease, is apposite. In Apex Fountain Sales, the District Court entered a contempt order that, among other things, ordered an accounting of the net profits realized from sale of the infringing items. We held that the order was not reviewable under the Forgay-Conrad doctrine because the determination of net profits would not be easily reached. See id. at 936. In Goodman v. Lee, 988 F.2d 619 (5th Cir.1993), the Fifth Circuit addressed circumstances similar to those with which we are confronted. In that case, Shirley Goodman sued the heirs of her former recording partner, Audrey Lee, for copyright ownership rights to their 1956 hit song, “Let the Good Times Roll.” The jury found in favor of Goodman, and the District Court ordered the registrar of copyrights to correct the records of the copyright office to reflect Goodman’s ownership. Furthermore, the Court ordered Lee’s heirs to account to Goodman for one-half of all royalties paid over the 29-year period between the time of the song’s release and the date of the judgment. The District Court did not reduce the award to a certain sum. On appeal, the Fifth Circuit acknowledged a line of cases in which appeal had been permitted prior to a final accounting because the accounting was viewed as “purely ‘ministerial’ and/or ‘mechanical.’” Id. at 626 (citing Winston Network v. Indiana Harbor Belt R. Co., 944 F.2d 1351 (7th Cir.1991); Parks v. Pavkovic, 753 F.2d 1397 (7th Cir.1985)). However, the Goodman Court concluded that the accounting in the case before it would not be purely ministerial: The award contemplates identifying royalties paid on one particular song to songwriter now dead and thereafter to his heirs over an almost thirty (30) year period.... Clearly, the amount to be divided is not known, was not identified in the extensive district court experience and must be reconstructed requiring factual determinations by the district court. Id. at 627. Therefore, the Court held that the judgment was not within the Forgay-Conrad rule and was not" }, { "docid": "23200999", "title": "", "text": "order.” McMonagle does not contest the validity of the TRO, his knowledge of it, or his presence at the demonstrations. He instead claims that by protesting, he was merely exercising his right to free speech and that, at all events, there was insufficient evidence to establish his alleged trespass. Both claims are unavailing. To begin with, McMonagle’s right to free speech does not immunize him from liability for engaging in proscribed conduct. Insofar as McMonagle asserts that the TRO was an unreasonable time, place and manner restriction on his speech, the validity of the order may not be collaterally challenged in a contempt proceeding for violating the order. United States v. Stine, 646 F.2d 839, 845 (3d Cir.1981). In fashioning its TRO, the district court specifically considered defendants’ first amendment rights. On appeal, we employ an abuse of discretion standard to review the details of a court’s equitable order. See Evans v. Buchanan, 555 F.2d 373, 378 (3d Cir.) (in banc), cert. denied, 434 U.S. 880, 98 S.Ct. 235, 54 L.Ed.2d 160 (1977). Nothing in the record indicates that the district court abused its discretion in balancing the legitimate and competing interests of plaintiffs and defendants. Further, we do not think that actual trespass is a necessary precondition for holding McMonagle in civil contempt. The law does not permit the instigator of contemptuous conduct to absolve himself of contempt liability by leaving the physical performance of the forbidden conduct to others. As a result, those who have knowledge of a valid court order and abet others in violating it are subject to the court’s contempt powers. Cf. Quinter v. Volkswagen of America, 676 F.2d 969, 972 (3d Cir.1982); Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 833 (2d Cir.1930). McMonagle was personally served with a copy of the TRO on June 30,1988. According to the record, he nonetheless participated in the protests at WSC on July 5 and at NEWC on July 6. McMonagle was indeed identified as one of the leaders of these demonstrations. With respect to the July 5 protest, one witness testified that McMonagle, wearing an Operation" }, { "docid": "14423180", "title": "", "text": "appellate court then determined that this earlier order was law of the case. “[Wjhen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Id. at 1441. (Citations omitted.) In Little Earth, similar to our case, almost two years passed between the earlier order and the later appeal, and the court would not “belatedly consider the propriety of issues resolved in the [earlier district court] order.” Ibid. (Citations omitted). IV The objection may be made that Michigan could not have appealed the 1988 order of the district court, and thus should not now be bound by it as law of the case. However, once that 1988 order was issued, all that remained was calculation of damages under specific instructions, and it is commonplace that the pendency of damage computations does not prevent an appeal. Turner v. Orr, 759 F.2d 817, 820 (11th Cir.1985) (ap-pealable where a special master had “ordered the immediate promotion of Little and [required calculation of] seniority, back pay and other appropriate relief’); Hattersley v. Bollt, 512 F.2d 209, 213 (3d Cir.1975) (judgment appealable even though “does not ... assess the precise monetary amount owed_ because the judgment fixes ... ultimate liability and clearly establishes the parameters of that liability”); Massachusetts Casualty Ins. Co. v. Forman, 469 F.2d 259, 260 (5th Cir.1972) (appealable where order “amounted to a final disposition of the primary issue then existing between the parties”); See United States v. Brook Contracting Corp., 759 F.2d 320, 323 (3d Cir.1985) (same). Judge Cooke’s 1988 order is couched in terms of specific damage calculations. Many of the matters to which Michigan now objects were specifically settled in the 1988 order. If remaining points of calculation would have prevented an appeal in 1988, similar points should have prevented the very 1991 appeal that Michigan has now taken, and there has been no intimation from any party or from the court that this appeal is improper. We note that upon our affirmance of the district court, there”will still remain similar calculations to be made." } ]

[ { "docid": "1193836", "title": "", "text": "history language behind subsection (b), in holding that a debtor’s request for a second conversion rests with “the sound discretion of court, based on what will most inure to the benefit of all parties in interest.” In re Trevino, 78 B.R. at 32; In re Sensibaugh, 9 B.R. at 46; accord, In re Walker, 77 B.R. at 804. A contrary approach is found in another line of decisions. In re Richardson, 43 B.R. 636, 637-38 (Bankr.M.D.Fla.1984); In re Nimai Kumar Ghosh, 38 B.R. 600, 603 (Bankr.E.D.N.Y.1984); In re Bumpass, 28 B.R. 597 (Bankr.S.D.N.Y.1983). These courts have held that § 706(a) prohibits a debtor’s second attempt to convert and consequently, that a discretionary right to convert does not exist for the debtor under § 706. In Richardson, the court explained its conclusion as consistent with the literal language of § 706 and its legislative history. The legislative history of § 706(a) plainly supports the interpretation that a debtor’s right to convert is lost once it has been exercised. The legislative history behind subsection (c) to § 706 does not make any reference to a debtor’s discretionary right to convert; instead, it is only “part of the prohibition against involuntary chapter 13 cases, and prohibits the court from converting a case to chapter 13 without the debtor’s consent.” S.Rep. No. 989, 95th Cong. 2d Sess. 94 (1978), U.S.Code & Admin.News 1978, at 5787, 5880; see In re Richardson, 43 B.R. at 638. The use of “absolute” in the legislative history has been accorded undue significance by those courts finding a discretionary right. Congress’ effort to specify an unconditional right of conversion for debtors also supports a reasonable inference that a debtor’s right to convert under § 706 is limited to a single opportunity, since nothing prevented Congress from particularly referring to a discretionary right of conversion. The legislative history to subsection (b) of § 706 is only indicative of those circumstances under which a party in interest may seek a conversion under Chapter 11. To interpret § 706 as allowing only one opportunity to a debtor to convert does not compromise the" } ]

[ { "docid": "12186477", "title": "", "text": "find more persuasive the reasoning of the court in In re Carter: The legislative history of § 706(a) plainly supports the interpretation that a debtor’s right to convert is lost once it has been exercised.... The use of “absolute” in the legislative history has been accorded undue significance by those courts finding a discretionary right. Congress’ effort to specify an unconditional right of conversion for debtors also supports a reasonable inference that a debtor’s right to convert is limited to a single opportunity, since nothing prevented Congress from particularly referring to a discretionary right of conversion. Following the reasoning of the Carter court, this Court holds that the Debtors do not have a right to reconvert their case. Accordingly, it is hereby ORDERED that the Motion by Debtors to Convert Case Under Chapter 7 to Case Under Chapter 13 is DENIED. . All references herein to \" § ” or \"section” shall refer to Title 11, United States Code. . See, e.g., In re Carter, 84 B.R. 744 (D.Kan. 1988); In re Hardin, 301 B.R. 298 (Bankr. C.D.Ill.2003); In re Vitti, 132 B.R. 229 (Bankr.D.Conn.1991); In re Ghosh, 38 B.R. 600 (Bankr.E.D.N.Y.1984). . See, e.g., In re Johnson, 376 B.R. 763, 2007 WL 3156255 (Bankr.D.N.M. Oct.29, 2007); In re Anderson, 354 B.R. 766 (Bankr.D.S.C. 2006); In re Johnson, 116 B.R. 224 (Bankr.D.Idaho 1990); In re Trevino, 78 B.R. 29 (Bankr.M.D.Pa. 1987). . -U.S.-, 127 S.Cl. 1105, 166 L.Ed.2d 956 (2007). . Id. at 1113 (Alito, J., dissenting). . Id. atlllO. . H.R.Rep. No. 95-595, at 380 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6336; S.Rep. No. 95-989, at 94 (1978), reprinted in 1978 U.S.C.A.A.N. 5787, 5880. . In re Carter, 84 B.R. 744, 747 (D.Kan.1988)." }, { "docid": "18331139", "title": "", "text": "part of the prohibition against involuntary chapter 13 cases, and prohibits the court from converting a case to chapter 13 without the debtor’s consent. In contrast, other cases have concluded that the court has discretion to permit reconversion and may do so dependent upon the facts of the individual ease. Cases permitting re-conversion by way of court discretion include In re Offer, 2006 WL 995858 (Bankr.M.D.N.C. Feb.27, 2006); In re Manouchehri, 320 B.R. 880 (Bankr.N.D.Ohio 2004); In re Masterson, 141 B.R. 84 (Bankr.E.D.Pa.1992); In re Johnson, 116 B.R. 224 (Bankr.D.Idaho 1990); In re Sensibaugh, 9 B.R. 45 (Bankr.E.D.Va.1981); In re Walker, 77 B.R. 803 (Bankr.D.Nev.1987). According to a legal commentary: A few courts have read [§ 706(c) ], and the absence of a specific authorization for a motion to convert to chapter 12 or chapter 13 when there is no absolute right to convert, to preclude reconversion to chapter 12 or chapter 13 after a case has been converted from one of those chapters to chapter 7. However, had Congress meant to bar such recon-versions completely, it would not have used the language it used. Unlike section 706(a), which speaks of the debtor converting a case when the debtor has an absolute right to convert, subsection 706(c), like subsection 706(b), speaks of the court converting the case. Both sections 706(b) and 706(c) refer to a decision of the court, in its discretion, to permit conversion at the request of a party. Section 706(c) serves simply to limit who may request conversion to chapter 12 or chapter 13, permitting only the debtor to make such a request. If the court were not authorized to convert a case to chapter 13 in the first place, there would be no need for section 706(c). Therefore, the power of the court to convert a case to chapter 13 is implicit in section 706(c), which limits that power. Most courts have recognized that it would make little sense to deny the debtor any opportunity to convert back to chapter 12 or chapter 13 if the debtor decides an earlier conversion to chapter 7 was a" }, { "docid": "15838120", "title": "", "text": "the Motion to Convert until June 4, 2007. (See Docket #43). Instead, Debtors did nothing to bring the Motion to Convert before the Court and have remained in Chapter 7 without having to make any plan payments for over a year. Apparently, due to the pending Motion to Convert, the Chapter 7 Trustee took no action in this case. Thus the Debtors’ bankruptcy proceeding came to a standstill while, in the meantime, the Debtors failed to comply with the requirements for proceeding under Chapter 7 or Chapter 13. This type of delay is prejudicial to creditors and indicates that the Debtors have not proceeded in good faith. WHEREFORE, IT IS HEREBY ORDERED that the Motion to Convert is DENIED. . The Debtors' plan was confirmed on November 29, 2005. See Docket # 17. The Chapter 13 Trustee filed a Motion to Dismiss on October 6, 2006 (Docket # 30), and the Debtors filed a Notice of Conversion of Case to Chapter 7 Under Section 1307(a) on October 12, 2006 (Docket # 32). . Compare In re Hardin, 301 B.R. 298, 300 (Bankr.C.D.Ill.2003) (holding that the court has no discretion to allow reconversion under § 706(a), which “gives debtors a right to convert only if the case has not previously been converted”), and In re Baker, 289 B.R. 764, 768 (Bankr.M.D.Ala.2003) (finding that the clear language of the statute bars reconversion), and In re Banks, 252 B.R. 399, 402-403 (Bankr.E.D.Mich.2000) (holding that § 706(a) bars reconversion of the case, concluding that \" 'a debtor's right to convert is lost once it has been exercised.' \"Xquoting In re Hanna, 100 B.R. 591, 593 (Bankr.M.D.Fla.1989)), with In re Anderson, 354 B.R. 766, 769 (Bankr.D.S.C. 2006) (adopting \"the view that a previous conversion in a case precludes conversion as a matter of right but that a second conversion may be permitted, after notice and a hearing.”), and In re Manouchehri, 320 B.R. 880, 884 (Bankr.N.D.Ohio 2004)(finding that the court has discretion under § 706(a) to consider whether case may be reconverted), and In re Johnson, 116 B.R. 224, 227 (Bankr.D.Idaho 1990)(holding that court has" }, { "docid": "1193834", "title": "", "text": "any decision relative to conversion under subsections (b) or (c) is left to the sound discretion of the court based on what most inures to the benefit of all parties in interest. In re Sensibaugh, 9 B.R. at 46. Other courts have followed this interpretation of § 706. In re Trevino, 78 B.R. 29 (Bankr.M.D.Pa.1987); In re Walker, 77 B.R. 803 (Bankr.D.Nev.1987); In re Hollar, 70 B.R. 337 (Bankr.E.D.Tenn.1987). These courts have also looked to the following legislative history: Subsection (a) of this section gives the debtor the one-time absolute right of conversion of a liquidation case to a reorganization or individual repayment plan case. If the case has already once been converted from chapter 11 or 13 to chapter 7, then the debtor does not have that right. The policy of the provision is that the debtor should always be given the opportunity to repay his debts, and a waiver of the right to convert a case is unenforceable. Subsection (b) permits the court, on request of a party in interest and after notice and a hearing, to convert the case to chapter 11 at any time. The decision whether to convert is left in the sound discretion of the court, based on what will most inure to the benefit of all parties in interest. S.Rep. No. 989, 95th Cong., 2d sess. 94 (1978), U.S.Code & Admin.News 1978, p. 5787, 5880. See also H.R.Rep. No. 595, 95th Cong. 1st Sess. 380 (1977), U.S.Code & Admin.News 1978, p. 5963, 6336. Focusing on the adjective “absolute,” the bankruptcy court in Walker concluded that the debtor only loses his “absolute” right to convert and “the debtor may request conversion pursuant to section 706(c), even if a previous conversion has been effectuated.” 77 B.R. at 804-805. In Hollar, the bankruptcy court emphasized the policy that a debt- or should always have the opportunity to repay his debts and believed this policy would be contravened by a bar to permissive conversions. 70 B.R. at 338; see also In re Sensibaugh, 9 B.R. at 47. As a result, these courts have latched upon the legislative" }, { "docid": "13351017", "title": "", "text": "provision of this section, a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter. 11 U.S.C. § 706. Commentators and some courts refer to conversion pursuant to § 706(a), in the absence of a prior conversion, as a matter of absolute right. See 6 Collier on Bankruptcy ¶ 706.02[1] at 706-3 (15th ed. rev.2005); In re Finney, 992 F.2d 43, 44-5 (4th Cir.1993)(reserving the issue that some egregious conduct might be sufficient to abrogate the right to convert). Once a conversion has taken place in a case some courts indicate that any further right to convert a case is lost. In re Banks, 252 B.R. 399 (Bankr.E.D.Mich.2000); In re Hanna, 100 B.R. 591 (Bankr.M.D.Fla.1989). Other courts permit a re-conversion. In re Sensibaugh, 9 B.R. 45 (Bankr.E.D.Va.1981); In re Masterson, 141 B.R. 84 (Bankr.E.D.Pa.1992); Matter of Johnson, 116 B.R. 224 (Bankr.D.Idaho 1990). The court adopts the view that a previous conversion in a case precludes conversion as a matter of right but that a second conversion may be permitted, after notice and hearing. The court has discretion to order a second conversion but should scrutinize the debtor’s circumstances, bona fides, and ability to succeed with the purposes for conversion. The court should weigh the interests of the debtor, the estate and all creditors and address each such motion on a case by case basis. The burden of proof is on the moving party. The chapter 7 trustee has objected to the motion to convert. He has standing to do so. In re Grew, 278 B.R. 619 (Bankr.M.D.Fla.2002)(Objecting that the debtor was ineligible to be a debtor under chapter 13). The chapter 7 trustee has a fiduciary duty to the creditors and is responsible for collecting and liquidating propei’ty of the estate. § 704(a)(1). The trustee has commenced efforts to require payment of the mortgage by the credit life policy. The debtor did not articulate a plan for demanding payment under the policy and seemed confused as to the ability to require payment. The trustee can better" }, { "docid": "16169803", "title": "", "text": "debtor has an absolute right to convert and, if not, what conditions may pose an impediment to conversion. Ancillary issues are the appropriate procedure to implement the conversion and what effect, if any, a chapter 7 discharge has on a proposed conversion. DISCUSSION The controversy in this case is generated by the express language of § 706(a), which states in pertinent part that “[t]he debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if the case has not yet been converted under section 1112, 1208, or 1307 of this title.” 11 U.S.C. § 706(a) (emphasis added). This statutory language has been the subject of much debate, and courts are divided on the question of whether a debtor has an absolute right to convert from chapter 7 to chapter 13. See In re Krishnaya, 263 B.R. at 65 (“The authorities are considerably less than uniform as to whether the right to convert to chapter 13 is wholly absolute by statute.”) Interestingly, three competing views have emerged. First, one line of authority gives literal meaning to the statute and holds that the law is clear and unambiguous; therefore, there is no authority to deny conversion based on any factors other than those explicitly stated in § 706. See, e.g., In re Young, 237 F.3d 1168 (10th Cir.2001); In re Finney, 992 F.2d 43 (4th Cir.1993); In re Martin, 880 F.2d 857 (5th Cir.1989); In re Miller, 303 B.R. 471 (10th Cir. BAP 2003); Pequeno v. Schmidt, 307 B.R. 568 (S.D.Tex.2004); In re Widdicombe, 269 B.R. 803 (Bankr.W.D.Ark.2001); In re Rossen, Case No. 99-10383, slip. op. (Bankr.D.Vt. July 10, 2000); In re Kleber, 81 B.R. 726 (Bankr.N.D.Ga.1987); In re Easley, 72 B.R. 948 (Bankr.M.D.Tenn.1987). This line of authority has been characterized as the majority view. In re Widdicombe, 269 B.R. at 806. But see In re Ponzini, 277 B.R. 399, 403 (Bankr.E.D.Ark.2002) (asserting that there is no longer a clear majority). Second, one branch within the minority holds that the right to convert is absolute only in the absence" }, { "docid": "5127799", "title": "", "text": "liquidated. Rather than lose the auto to the Trustee, Debtors ask for an opportunity to “repurchase” it through a plan. Whether the equity in the vehicle is subject to a lien, or must be purchased from the estate under Section 1325(a)(4), the confirmation standards for any plan will be nearly identical. Absent a showing that Debtors can now confirm a plan, when they could not before, conversion must be denied. Debtors’ motion to convert is DENIED. Counsel for Trustee shall submit an appropriate order. . The following decisions insist that the debtor has no right to reconvert a case to a reorganization chapter once it has been converted to a chapter 7 case. In re Ghosh, 38 B.R. 600 (Bankr.E.D.N.Y.1984); In re Richardson, 43 B.R. 636 (Bankr.M.D.Fla.1984); In re Carter, 84 B.R. 744 (D.Kan.1988); In re Hanna, 100 B.R. 591 (Bankr.M.D.Fla.1989); In re Bryan, 109 B.R. 534 (Bankr.D.C.1990). See also 3 Collier Bankruptcy Manual ¶ 706.02 (3d ed. 1987). Contrarily, the following cases acknowledge debtor’s loss of the absolute right to reconvert, but hold that the court may still convert the case on motion of the debtor for cause shown. In re Sensibaugh, 9 B.R. 45 (Bankr.E.D.Va.1981); In re Hollar, 70 B.R. 337 (Bankr.E.D.Tenn.1987); In re Walker, 77 B.R. 803 (Bankr.D.Nev.1987); In re Trevino, 78 B.R.29 (Bankr.M.D.Pa.1987)." }, { "docid": "13612394", "title": "", "text": "intended purpose. E.g., Gonzalez v. Young, 441 U.S. 600, 608, 99 S.Ct. 1905, 1911, 60 L.Ed.2d 508 (1979); see also In re City of Bridgeport, 128 B.R. 688, 694 (Bkrtcy.D.Conn.1991), quoting, Crandon v. United States, 494 U.S. 152, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (“In determining the meaning of a statute, we look not only to the particular language, but to the design of the statute as a whole and to its object and policy”). The legislative history of § 706(c) states that the subsection is “part of the prohibition against involuntary chapter 13 cases, and prohibits the court from converting a case to chapter 13 without the debtor’s consent.” S.Rep. No. 989, 95th Cong., 2d Sess. 94 (1978); H.R.Rep. No. 595, 95th Cong., 1st Sess. 380 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5880, 6336, A corollary prohibition is found in § 1112(d)(1), which provides: The court may convert a case under ... chapter [11] to a case under chapter ... 13 of this title only if— (1) the debtor requests such conversion. ... It follows then that the purpose of § 706(c) is to place a prohibition on the court, not to grant a debtor rights beyond the scope of § 706(a). See In re Hanna, supra, 100 B.R. at 593; In re Richardson, 43 B.R. 636, 638 (Bankr.M.D.Fl.1984). III. This chapter 7 case was previously converted from chapter 13, the debtor may not now convert it back to chapter 13. The debtor’s motion is DENIED, and IT IS SO ORDERED. . The debtor’s citation to In the Matter of Texas Extrusion Corp., 844 F.2d 1142 (5th Cir.1988) is inapposite. There, a creditor sought to have a chapter 7 case reconverted to a case under chapter 11. Under those facts, the relevant code provision was § 706(b). Here a debtor attempts to use § 706(c) to reconvert his chapter 7 case to a case under chapter 13. The debtor also relies upon In re Walker, 77 B.R. 803 (Bankr.D.Nev.1987) which holds that § 706(c) permits a conversion to chapter 13 even after a prior conversion from" }, { "docid": "214716", "title": "", "text": "the Debtor’s food expenses from $300 to $200 per month. The Defendant contended that the Debtor’s amended Schedule J was not submitted in good faith. The Defendant also argued that the Debtor’s proposed Chapter 13 plan cannot be premised upon a speculative recovery in the adversary proceeding. It cites The First Nat'l Bank of Boston v. Fantasia (In re Fantasia), 211 B.R. 420, 423 (1st Cir. BAP 1997) (“[T]o satisfy feasibility, a debt- or’s plan must have a reasonable likelihood of success, i.e., that it is likely that the debtor will have the necessary resources to make all payments as directed by the plan. 11 U.S.C. § 1325(a)(6)....,”) for the proposition that a feasible Chapter 13 plan cannot be based on speculation. 2. Applicable Law Section 706(a) provides: “[t]he debtor may convert a case under this chapter to a case under Chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title.” 11 U.S.C. § 706(a). Courts are split as to whether a conversion from Chapter 13 to Chapter 7 permits a debtor to convert back to Chapter 13. Some courts interpret § 706(a) to mean they have no discretion to convert a case back to Chapter 13 if it was previously converted to Chapter 7, frequently referencing the plain meaning of language utilized in that section. See, e.g., In re Fry, No. 04-16887, 2008 WL 4682266 at *2-3 (Bankr.D.Kan. Oct. 14, 2008); In re Muth, 378 B.R. 302, 302-04 (Bankr.D.Colo.2007); In re Hardin, 301 B.R. 298 (Bankr.C.D.Ill. 2003); In re Banks, 252 B.R. 399, 402 (Bankr.E.D.Mich.2000). Other courts permit reconversion under appropriate circumstance. See, e.g., In re Bange, No. 08-40156-7C, 2010 WL 3829632 at *1 (Bankr. D.Kan. Sept. 23, 2010); In re Johnson, 376 B.R. 763 (Bank.D.N.M.2007); In re Anderson, 354 B.R. 766, 768-69 (Bankr. D.S.C.2006); In re Masterson, 141 B.R. 84 (Bankr.E.D.Pa.1992); In re Hollar, 70 B.R. 337, 338 (Bankr.E.D.Tenn.1987). Courts permitting reconversion have determined that “§ 706(a) is phrased as a restriction on the debtor’s ability to convert a case ..." }, { "docid": "3533286", "title": "", "text": "84 B.R. 744, 748 (D.Kan.1988); In re Vitti, 132 B.R. 229, 231 (Bankr.D.Conn.1991); In re Bryan, 109 B.R. 534 (Bankr.D.D.C.1990); In re Hanna, 100 B.R. 591, 594 (Bankr.M.D.Fla.1989); In re Richardson, 43 B.R. 636, 638 (Bankr.M.D.Fla.1984); and In re Ghosh, 38 B.R. 600, 603 (Bankr.E.D.N.Y.1984). Other courts have held that a second conversion is possible, but have refused conversions in the exercise of their discretion on the facts before them. See In re Somers Corp., 123 B.R. 35, 37 (Bankr.N.D.Ohio 1990); In re Johnson, 116 B.R. 224, 227 (Bankr.D.Idaho 1990); In re Trevino, 78 B.R. 29, 32 (Bankr.M.D.Pa.1987); and In re Walker, 77 B.R. 803, 805 (Bankr.D.Nev.1987). Finally, other courts, agreeing that a second conversion is possible, have exercised their discretion to allow conversion because the facts warranted it. See In re Hollar, 70 B.R. 337, 338 (Bankr.E.D.Tenn.1987); and In re Sensibaugh, 9 B.R. 45, 47 (Bankr.E.D.Va.1981). The first line of cases reasons, through statutory interpretation, that, if a case has already been converted once, the debtor has no right to convert again. Vitti, supra, 132 B.R. at 230. See also Carter, supra, 84 B.R. at 747; Bryan, supra, 109 B.R. at 534; Hanna, supra, 100 B.R. at 593; Richardson, supra, 43 B.R. at 638; and Ghosh, supra, 38 B.R. at 603. These courts hold that the brief legislative history of § 706(a) supports such an interpretation. The Carter court stated that, in granting the debtors but one chance to convert, Congress “struck a balance between the competing policy of the debtor’s opportunity to repay and the potential disadvantage of delay caused by repeated attempts to convert.” 84 B.R. at 747. However, we note that, although some case law supports this position, neither Gardner nor the United States Trustee, who appeared at the hearing on June 4, 1992, and opposed the conversion, argued that the debtors should be precluded entirely from a second conversion of a Chapter 7 case. Rather, these parties opposed the instant second conversion because they did not believe the Debtor would be capable of confirming a Chapter 13 plan. This court, like apparently all of the" }, { "docid": "15838121", "title": "", "text": "re Hardin, 301 B.R. 298, 300 (Bankr.C.D.Ill.2003) (holding that the court has no discretion to allow reconversion under § 706(a), which “gives debtors a right to convert only if the case has not previously been converted”), and In re Baker, 289 B.R. 764, 768 (Bankr.M.D.Ala.2003) (finding that the clear language of the statute bars reconversion), and In re Banks, 252 B.R. 399, 402-403 (Bankr.E.D.Mich.2000) (holding that § 706(a) bars reconversion of the case, concluding that \" 'a debtor's right to convert is lost once it has been exercised.' \"Xquoting In re Hanna, 100 B.R. 591, 593 (Bankr.M.D.Fla.1989)), with In re Anderson, 354 B.R. 766, 769 (Bankr.D.S.C. 2006) (adopting \"the view that a previous conversion in a case precludes conversion as a matter of right but that a second conversion may be permitted, after notice and a hearing.”), and In re Manouchehri, 320 B.R. 880, 884 (Bankr.N.D.Ohio 2004)(finding that the court has discretion under § 706(a) to consider whether case may be reconverted), and In re Johnson, 116 B.R. 224, 227 (Bankr.D.Idaho 1990)(holding that court has authority to reconvert a case to Chapter 13). . See Anderson, 354 B.R. at 769 (\"The court has discretion to order a second conversion but should scrutinize the debtor’s circumstances .... and address each ... motion on a case by case basis.”). . See Manouchehri, 320 B.R. at 884 (debtor seeking to reconvert, whose good faith has been questioned, bears the ultimate burden of proof). See also, Johnson, 116 B.R. at 227 (finding that debtors \"failed to demonstrate the kinds of facts which would persuade the Court to exercise its discretion!]’' to reconvert the debtors' case to chapter 13.). . Cf. Manouchehri, 320 B.R. at 885-886 (denying debtor's request for reconversion when the facts indicated that the debtor had acted in bad faith during the bankruptcy case by not cooperating with the trustee). See also, In re Carter, 84 B.R. 744, 747-748 (D.Kan.1988) (finding that debtors lost their right to seek conversion to chapter 13 following involun-taiy conversion from chapter 11 to chapter 7, but noting that, even if the court were to assume that" }, { "docid": "21076581", "title": "", "text": "Supplemental Opinion STEVEN W. RHODES, Bankruptcy Judge. Having once converted her case from chapter 13 to chapter 7, the debtor requests re-conversion of her case to chapter 13. A creditor objects, arguing that reconversion is prohibited by 11 U.S.C. § 706(a). The Court holds that although the statute is subject to interpretation, it appears that the congressional intent was to prohibit re-conversion to chapter 13 in these circumstances. Accordingly, the debtor’s motion to re-convert is denied. This opinion supplements an opinion given on the record in open court on July 31, 2000. I. Denise M. Banks originally filed a chapter 13 petition. At the confirmation hearing on June 15, 2000, the debtor’s chapter 13 plan was not confirmable because she had failed to file 1992-1999 income tax returns. The debtor requested and the Court granted conversion of the case to chapter 7. On June 28, 2000, the debtor filed a motion to re-convert the case to chapter 13. Ralph R. Roberts Real Estate, a creditor, objected to the re-conversion of the case, arguing that the plain language of 11 U.S.C. § 706(a) prohibits conversion of a chapter 7 case to chapter 13 if the case had previously been converted from chapter 13 to chapter 7. II. Section 706(a) provides: The debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title. Any waiver of the right to convert a case under this subsection is unenforceable. 11 U.S.C. § 706(a). The cases are divided on the issue of whether a case previously converted to chapter 7 may be re-converted to chapter 11, 12, or 13. The cases fall into three categories. Cases holding that § 706(a) bars re-conversion include: In re Carter, 84 B.R. 744, 748 (D.Kan.1988); In re Vitti, 132 B.R. 229, 231 (Bankr.D.Conn.1991); In re Bryan, 109 B.R. 534, (Bankr.D.D.C.1990); In re Hanna, 100 B.R. 591, 594 (Bankr.M.D.Fla.1989); In re Richardson, 43 B.R. 636, 638 (Bankr.M.D.Fla.1984); and In re Ghosh, 38" }, { "docid": "18331138", "title": "", "text": "Cases are split on whether a liquidation case previously converted from chapter 13 may re-convert back to chapter 13 in the court’s discretion. Cases holding that there is no right to re-convert to chapter 13 once a case has been converted to liquidation include In re Banks, 252 B.R. 399 (Bankr.E.D.Mich.2000); In re Vitti, 132 B.R. 229 (Bankr.D.Conn.1991);, In re Hanna, 100 B.R. 591 (Bankr.M.D.Fla.1989); Ghosh v. Fin. Fed. Sav. & Loan Ass’n (In re Ghosh), 38 B.R. 600 (Bankr.E.D.N.Y.1984); In re Richardson, 43 B.R. 636 (Bankr.M.D.Fla.1984). Those cases not infrequently base their decision in part on the legislative history of the statute which refers to a one-time absolute right of conversion under § 706(a). The legislative comments to § 706 provide: Subsection (a) of this section gives the debtor the one-time absolute right of conversion of a liquidation case to a reorganization or individual repayment plan case. If the case has already once been converted from chapter 11 or 13 to chapter 7, then the debtor does not have that right. Subsection (c) is part of the prohibition against involuntary chapter 13 cases, and prohibits the court from converting a case to chapter 13 without the debtor’s consent. In contrast, other cases have concluded that the court has discretion to permit reconversion and may do so dependent upon the facts of the individual ease. Cases permitting re-conversion by way of court discretion include In re Offer, 2006 WL 995858 (Bankr.M.D.N.C. Feb.27, 2006); In re Manouchehri, 320 B.R. 880 (Bankr.N.D.Ohio 2004); In re Masterson, 141 B.R. 84 (Bankr.E.D.Pa.1992); In re Johnson, 116 B.R. 224 (Bankr.D.Idaho 1990); In re Sensibaugh, 9 B.R. 45 (Bankr.E.D.Va.1981); In re Walker, 77 B.R. 803 (Bankr.D.Nev.1987). According to a legal commentary: A few courts have read [§ 706(c) ], and the absence of a specific authorization for a motion to convert to chapter 12 or chapter 13 when there is no absolute right to convert, to preclude reconversion to chapter 12 or chapter 13 after a case has been converted from one of those chapters to chapter 7. However, had Congress meant to bar such recon-versions" }, { "docid": "18331137", "title": "", "text": "and possibly prevent a future discharge under 11 U.S.C. § 1328(f). However, whether the Debtors are entitled to chapter 13 relief pursuant to 11 U.S.C. § 706 is the subject of some controversy. Section 706 governs conversion of a chapter 7 case and provides: (a) The debtor may convert a case under this chapter to a case under chapter 11, 12 or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title. Any waiver of the right to convert a case under this subsection is unenforceable. (c) The court may not convert a case under this chapter to a case under chapter 12 or 13 of this title unless the debtor requests or consents to such conversion. 11 U.S.C. § 706. Under § 706(a), conversion from chapter 7 to chapter 13 is authorized by right only if the case has not previously been converted under § 1307. As Debtors converted them case under § 1307 they appear to have lost that right. Cases are split on whether a liquidation case previously converted from chapter 13 may re-convert back to chapter 13 in the court’s discretion. Cases holding that there is no right to re-convert to chapter 13 once a case has been converted to liquidation include In re Banks, 252 B.R. 399 (Bankr.E.D.Mich.2000); In re Vitti, 132 B.R. 229 (Bankr.D.Conn.1991);, In re Hanna, 100 B.R. 591 (Bankr.M.D.Fla.1989); Ghosh v. Fin. Fed. Sav. & Loan Ass’n (In re Ghosh), 38 B.R. 600 (Bankr.E.D.N.Y.1984); In re Richardson, 43 B.R. 636 (Bankr.M.D.Fla.1984). Those cases not infrequently base their decision in part on the legislative history of the statute which refers to a one-time absolute right of conversion under § 706(a). The legislative comments to § 706 provide: Subsection (a) of this section gives the debtor the one-time absolute right of conversion of a liquidation case to a reorganization or individual repayment plan case. If the case has already once been converted from chapter 11 or 13 to chapter 7, then the debtor does not have that right. Subsection (c) is" }, { "docid": "5127798", "title": "", "text": "338. While it is true that there may be some expense and delay involved in the Court’s review of debtor’s request to reconvert, the Court is confident that it can discern those cases where the request is founded upon genuine desire and ability to confirm a plan, as compared to less commendable motives, and to employ appropriate safeguards, or even sanctions, if necessary. Having determined that the Court has the authority to convert this case to Chapter 13, is such the proper course here? Unfortunately, Debtors have failed to demonstrate the kinds of facts which would persuade the Court to exercise its discretion. Debtors were, by their own admission, previously unable to confirm a Chapter 13 plan, thereby resulting in the conversion to Chapter 7. Debtors have shown the Court no change in their circumstances that would suggest any more likelihood of success now. The reconversion is sought here based upon the fact that the Trustee has been successful in avoiding the lien claimed by a creditor on Debtors’ vehicle, and it will therefore be liquidated. Rather than lose the auto to the Trustee, Debtors ask for an opportunity to “repurchase” it through a plan. Whether the equity in the vehicle is subject to a lien, or must be purchased from the estate under Section 1325(a)(4), the confirmation standards for any plan will be nearly identical. Absent a showing that Debtors can now confirm a plan, when they could not before, conversion must be denied. Debtors’ motion to convert is DENIED. Counsel for Trustee shall submit an appropriate order. . The following decisions insist that the debtor has no right to reconvert a case to a reorganization chapter once it has been converted to a chapter 7 case. In re Ghosh, 38 B.R. 600 (Bankr.E.D.N.Y.1984); In re Richardson, 43 B.R. 636 (Bankr.M.D.Fla.1984); In re Carter, 84 B.R. 744 (D.Kan.1988); In re Hanna, 100 B.R. 591 (Bankr.M.D.Fla.1989); In re Bryan, 109 B.R. 534 (Bankr.D.C.1990). See also 3 Collier Bankruptcy Manual ¶ 706.02 (3d ed. 1987). Contrarily, the following cases acknowledge debtor’s loss of the absolute right to reconvert, but hold that" }, { "docid": "21076583", "title": "", "text": "B.R. 600, 603 (Bankr.E.D.N.Y.1984). Cases holding that the court has discretion to permit re-conversion, but denying re-conversion based on the facts of the case include: In re Somers Corp., 123 B.R. 35, 37 (Bankr.N.D.Ohio 1990); In re Johnson, 116 B.R. 224, 227 (Bankr.D.Idaho 1990); In re Trevino, 78 B.R. 29, 32 (Bankr.M.D.Pa.1987); and In re Walker, 77 B.R. 803, 805 (Bankr.D.Nev.1987). Finally, cases holding that re-conversion is discretionary and allowing re-conversion based on the facts of the case include: In re Masterson, 141 B.R. 84 (Bankr.E.D.Pa.1992); In re Hollar, 70 B.R. 337, 338 (Bankr.E.D.Tenn.1987); and In re Sensibaugh, 9 B.R. 45, 47 (Bankr.E.D.Va.1981). III. Many of the decisions holding that § 706(a) bars re-conversion of a case conclude that the plain language of this section requires that result. Richardson, 43 B.R. at 638; Ghosh, 38 B.R. at 603; Vitti, 132 B.R. at 230. Unfortunately, for the debtor, the language of Section 706 clearly bars a debt- or from converting a case from Chapter 7 to Chapter 13 more than once. Subsection (a) of that section states in relevant part that a “debtor may convert a case under this chapter to a case under Chapter 11 or 13 of this title at any time, if the case has not been converted under Section 1112 or 1307 of this title.” The language of this statute is not discretionary. By its plain meaning it bars the debtor from this second attempt at conversion. Ghosh, 38 B.R. at 603 (footnote omitted). However, at least two courts holding that § 706(a) bars re-conversion also considered the legislative history of the statute. Vitti, 132 B.R. at 230, Hanna, 100 B.R. at 593. In fact, in Hanna the court appears to concede that the language of the statute is not plain. At first blush, it appears that reconversion to Chapter 13 is strictly prohibited. However, the statute may also be read to suggest that debtor loses only the “absolute” right to convert to Chapter 13 after having previously converted to Chapter 7 under § 1112, § 1208, or § 1307 of the Bankruptcy Code. Consequently, the courts" }, { "docid": "21076584", "title": "", "text": "states in relevant part that a “debtor may convert a case under this chapter to a case under Chapter 11 or 13 of this title at any time, if the case has not been converted under Section 1112 or 1307 of this title.” The language of this statute is not discretionary. By its plain meaning it bars the debtor from this second attempt at conversion. Ghosh, 38 B.R. at 603 (footnote omitted). However, at least two courts holding that § 706(a) bars re-conversion also considered the legislative history of the statute. Vitti, 132 B.R. at 230, Hanna, 100 B.R. at 593. In fact, in Hanna the court appears to concede that the language of the statute is not plain. At first blush, it appears that reconversion to Chapter 13 is strictly prohibited. However, the statute may also be read to suggest that debtor loses only the “absolute” right to convert to Chapter 13 after having previously converted to Chapter 7 under § 1112, § 1208, or § 1307 of the Bankruptcy Code. Consequently, the courts addressing this issue have often reached different results. Id. at 592. Indeed, other courts have interpreted the statute as “allowing a second conversion but only after a notice and hearing at which the Debtor’s circumstances must be carefully scrutinized, instead of, as in the case of an initial conversion, being allowed to convert a Chapter 7 case to another Chapter as of right.” Masterson, 141 B.R. at 87-88. These courts have cited two reasons for this interpretation. First, they cite the legislative history in support of the interpretation that § 706(a) provides a one-time absolute right to convert. Second, these courts find in § 706(c) a right to convert subject to the court’s discretion. That subsection provides, “The court may not convert a case under this chapter to a case under chapter 12 or 13 of this title unless the debtor requests such conversion.” For example, in Johnson, the court stated, “Obviously, in reviewing subsection (c), implied, if not expressed, within its terms is the authority for the Court to convert a case from Chapter" }, { "docid": "21076582", "title": "", "text": "plain language of 11 U.S.C. § 706(a) prohibits conversion of a chapter 7 case to chapter 13 if the case had previously been converted from chapter 13 to chapter 7. II. Section 706(a) provides: The debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title. Any waiver of the right to convert a case under this subsection is unenforceable. 11 U.S.C. § 706(a). The cases are divided on the issue of whether a case previously converted to chapter 7 may be re-converted to chapter 11, 12, or 13. The cases fall into three categories. Cases holding that § 706(a) bars re-conversion include: In re Carter, 84 B.R. 744, 748 (D.Kan.1988); In re Vitti, 132 B.R. 229, 231 (Bankr.D.Conn.1991); In re Bryan, 109 B.R. 534, (Bankr.D.D.C.1990); In re Hanna, 100 B.R. 591, 594 (Bankr.M.D.Fla.1989); In re Richardson, 43 B.R. 636, 638 (Bankr.M.D.Fla.1984); and In re Ghosh, 38 B.R. 600, 603 (Bankr.E.D.N.Y.1984). Cases holding that the court has discretion to permit re-conversion, but denying re-conversion based on the facts of the case include: In re Somers Corp., 123 B.R. 35, 37 (Bankr.N.D.Ohio 1990); In re Johnson, 116 B.R. 224, 227 (Bankr.D.Idaho 1990); In re Trevino, 78 B.R. 29, 32 (Bankr.M.D.Pa.1987); and In re Walker, 77 B.R. 803, 805 (Bankr.D.Nev.1987). Finally, cases holding that re-conversion is discretionary and allowing re-conversion based on the facts of the case include: In re Masterson, 141 B.R. 84 (Bankr.E.D.Pa.1992); In re Hollar, 70 B.R. 337, 338 (Bankr.E.D.Tenn.1987); and In re Sensibaugh, 9 B.R. 45, 47 (Bankr.E.D.Va.1981). III. Many of the decisions holding that § 706(a) bars re-conversion of a case conclude that the plain language of this section requires that result. Richardson, 43 B.R. at 638; Ghosh, 38 B.R. at 603; Vitti, 132 B.R. at 230. Unfortunately, for the debtor, the language of Section 706 clearly bars a debt- or from converting a case from Chapter 7 to Chapter 13 more than once. Subsection (a) of that section" }, { "docid": "13351016", "title": "", "text": "the record. The trustee, on the other hand, is more than capable of advancing the issue. He states that he has initiated a demand for payment. Conclusions of Law Conversion of a chapter 7 case is governed, other than in the very narrow circumstances of § 707(b), by § 706. It provides: (a) The debtor may convert a ease under this chapter to a case under chapter 11, 12 or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title. Any waiver of the right to convert under this subsection is unenforceable. (b) On request of a party in interest and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 11 of this title at any time. (c) The court may not convert a case under this chapter to a case under chapter 12 or 13 of this title unless the debtor requests or consents to such conversion. (d) Notwithstanding any other provision of this section, a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter. 11 U.S.C. § 706. Commentators and some courts refer to conversion pursuant to § 706(a), in the absence of a prior conversion, as a matter of absolute right. See 6 Collier on Bankruptcy ¶ 706.02[1] at 706-3 (15th ed. rev.2005); In re Finney, 992 F.2d 43, 44-5 (4th Cir.1993)(reserving the issue that some egregious conduct might be sufficient to abrogate the right to convert). Once a conversion has taken place in a case some courts indicate that any further right to convert a case is lost. In re Banks, 252 B.R. 399 (Bankr.E.D.Mich.2000); In re Hanna, 100 B.R. 591 (Bankr.M.D.Fla.1989). Other courts permit a re-conversion. In re Sensibaugh, 9 B.R. 45 (Bankr.E.D.Va.1981); In re Masterson, 141 B.R. 84 (Bankr.E.D.Pa.1992); Matter of Johnson, 116 B.R. 224 (Bankr.D.Idaho 1990). The court adopts the view that a previous conversion in a case precludes conversion as a matter of right" }, { "docid": "3533285", "title": "", "text": "her insurance expenses would arise again when the covered periods expired. Despite the imbalance of her expenses and income, she testified, with convincing enthusiasm, that she has a competitive “product” in a business that is both lucrative and untapped in Philadelphia. D. DISCUSSION The initial issue at hand is whether the Debtor is prevented from converting a Chapter 7 case, previously converted from a Chapter 11 case, to a Chapter 13 case under the terms of 11 U.S.C. § 706(a), which reads as follows: The debtor may convert a case under this chapter to a case under Chapter 11, 12 or 13 of this title at any time, if the case has not been converted under section 1112, 1307, or 1208 of this title. Any waiver of the right to convert a ease under this subsection is unenforceable. The courts appear to be evenly divided on the issue of whether a “second conversion” of a case previously converted to Chapter 7 is ever permissible. Some courts have refused any second conversion. See In re Carter, 84 B.R. 744, 748 (D.Kan.1988); In re Vitti, 132 B.R. 229, 231 (Bankr.D.Conn.1991); In re Bryan, 109 B.R. 534 (Bankr.D.D.C.1990); In re Hanna, 100 B.R. 591, 594 (Bankr.M.D.Fla.1989); In re Richardson, 43 B.R. 636, 638 (Bankr.M.D.Fla.1984); and In re Ghosh, 38 B.R. 600, 603 (Bankr.E.D.N.Y.1984). Other courts have held that a second conversion is possible, but have refused conversions in the exercise of their discretion on the facts before them. See In re Somers Corp., 123 B.R. 35, 37 (Bankr.N.D.Ohio 1990); In re Johnson, 116 B.R. 224, 227 (Bankr.D.Idaho 1990); In re Trevino, 78 B.R. 29, 32 (Bankr.M.D.Pa.1987); and In re Walker, 77 B.R. 803, 805 (Bankr.D.Nev.1987). Finally, other courts, agreeing that a second conversion is possible, have exercised their discretion to allow conversion because the facts warranted it. See In re Hollar, 70 B.R. 337, 338 (Bankr.E.D.Tenn.1987); and In re Sensibaugh, 9 B.R. 45, 47 (Bankr.E.D.Va.1981). The first line of cases reasons, through statutory interpretation, that, if a case has already been converted once, the debtor has no right to convert again. Vitti, supra," } ]

[ { "docid": "19939725", "title": "", "text": "as it has existed since 1967, not changing the law of available state remedies, making this case like the one in Randolph and distinguishing it from that in Wenger. Indeed, in its order promulgating Rule 39, the Tennessee Supreme Court explicitly stated that it was clarifying rather than changing existing law. We recognize that criminal and post-conviction relief litigants have routinely petitioned this Court for permission to appeal upon the Court of Criminal Appeals’ denial of relief in order to exhaust all available state remedies for purposes of federal habeas corpus litigation. In order to clarify that denial of relief by the Court of Criminal Appeals shall constitute exhaustion of state remedies for federal habeas corpus purposes, we hereby adopt the following Rule 39. In re: Order Establishing Rule 39, Rules of the Supreme Court of Tennessee: Exhaustion of Remedies (Tenn. Sup.Ct. June 28, 2001). This reading is also bolstered by the Tenn. R.App. P. 11 advisory committee’s note, which explains that Rule 39 “works no change to” Tenn. R.App. P. 11, the rule governing appeal to the Tennessee Supreme Court. In short, the language and history of Rule 39 strongly persuades this Court that it should be applied retroactively. The Court recognizes that federal courts interpreting Tennessee law have, until the passage of Rule 39, always required appeal to the Tennessee Supreme Court as part of the habeas exhaustion requirement, suggesting that perhaps Rule 39 changed Tennessee law rather than merely clarifying it. E.g., Jones v. Jones, 76 F.Supp.2d 850, 856-57 (E.D.Tenn.1999); Abdur'Rahman v. Bell, 999 F.Supp. 1073, 1080 (M.D.Tenn.1998), vacated on other grounds by 226 F.3d 696 (6th Cir.2000); Cole v. Campbell, 703 F.Supp. 657, 659 (M.D.Tenn.1988); Layman v. Russell, 300 F.Supp. 430, 431 (E.D.Tenn.1969). As the language quoted from the Order above shows, however, the Tennessee Supreme Court was also cognizant of this federal court history and sought to clarify the law with respect to Rule 39. Finally, this Court notes the policy argument discussed by the Third Circuit in Wenger, but respects Tennessee’s law on the subject of what constitutes available remedies within its own state," } ]

[ { "docid": "14562627", "title": "", "text": "his trial counsel and the second made serious allegations of prosecutorial misconduct. After hearing extensive evidence on both claims, on April 8, 1998, the District Court entered an order granting relief on the first claim, but holding that the second was procedurally barred because it had not been fully exhausted in the state courts. Abdur’Rahman v. Bell, 999 F. Supp. 1073 (MD Tenn. 1998). The procedural bar resulted from petitioner’s failure to ask the Supreme Court of Tennessee to review the lower state courts’ refusal to grant relief on the prosecutorial misconduct claim. Id., at 1080-1083. The District Court’s ruling that the claim had not been fully exhausted appeared to be correct under Sixth Circuit precedent and it was consistent with this Court’s later holding in O’Sullivan v. Boerckel, 526 U. S. 838 (1999). In response to our decision in O’Sullivan, however, the Tennessee Supreme Court on June 28, 2001, adopted a new rule that changed the legal landscape. See In re: Order Establishing Rule 39, Rules of the Supreme Court of Tennessee: Exhaustion of Remedies. App. 278. That new rule made it perfectly clear that the District Court’s procedural bar holding was, in fact, erroneous. The warden appealed from the District Court’s order granting the writ, but petitioner did not appeal the ruling that his prosecutorial misconduct claim was procedurally barred. The Court of Appeals set aside the District Court’s grant of relief to petitioner, 226 F. 3d 696 (CA6 2000), and we denied his petition for certiorari on October 9, 2001, 534 U. S. 970. The proceedings that were thereafter initiated raised the questions the Court now refuses to decide. On November 2, 2001, petitioner filed a motion, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, seeking relief from the District Court judgment entered on April 8, 1998. The motion did not assert any new constitutional claims and did not rely on any newly discovered evidence. It merely asked the District Court to set aside its 1998 order terminating the habeas corpus proceeding and to decide the merits of the prosecutorial misconduct claim that had" }, { "docid": "14562626", "title": "", "text": "Per Curiam. The writ of certiorari is dismissed as improvidently granted. Justice Stevens, dissenting. The Court’s decision to dismiss the writ of certiorari as improvidently granted presumably is motivated, at least in part, by the view that the jurisdictional issues presented by this case do not admit of an easy resolution. I do not share that view. Moreover, I believe we have an obligation to provide needed clarification concerning an important issue that has generated confusiori among the federal courts, namely, the availability of Federal Rule of Civil Procedure 60(b) motions to challenge the integrity of final orders entered in ha-beas corpus proceedings. I therefore respectfully dissent from the Court’s disposition of the case. I In 1988 the Tennessee Supreme Court affirmed petitioner’s conviction and his death sentence. His attempts to ob tain postconviction relief in the state court system were unsuccessful. In 1996 he filed an application for a writ of habeas corpus in the Federal District Court advancing several constitutional claims, two of which raised difficult questions. The first challenged the competency of his trial counsel and the second made serious allegations of prosecutorial misconduct. After hearing extensive evidence on both claims, on April 8, 1998, the District Court entered an order granting relief on the first claim, but holding that the second was procedurally barred because it had not been fully exhausted in the state courts. Abdur’Rahman v. Bell, 999 F. Supp. 1073 (MD Tenn. 1998). The procedural bar resulted from petitioner’s failure to ask the Supreme Court of Tennessee to review the lower state courts’ refusal to grant relief on the prosecutorial misconduct claim. Id., at 1080-1083. The District Court’s ruling that the claim had not been fully exhausted appeared to be correct under Sixth Circuit precedent and it was consistent with this Court’s later holding in O’Sullivan v. Boerckel, 526 U. S. 838 (1999). In response to our decision in O’Sullivan, however, the Tennessee Supreme Court on June 28, 2001, adopted a new rule that changed the legal landscape. See In re: Order Establishing Rule 39, Rules of the Supreme Court of Tennessee: Exhaustion of" }, { "docid": "22253792", "title": "", "text": "habeas claims because, in prior state proceedings, he had failed to seek discretionary review of those claims in the Supreme Court of Tennessee. See 580 F.3d at 433. Following the Tennessee supreme court’s promulgation of a rule clarifying that state habeas petitioners need not appeal to that court to exhaust their claims, the Thompson petitioner unsuccessfully moved in the district court for Rule 60(b)(6) relief from its dismissal order. See id. The Sixth Circuit reversed the denial of the clause (6) motion, however, concluding that promulgation of the new Tennessee supreme court rule was an “extraordinary circumstance” warranting such relief. See id. at 442-43. Notably, the Sixth Circuit distinguished Thompson from Gonzalez v. Crosby, 545 U.S. 524, 533, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), wherein the Supreme Court deemed clause (6) relief inappropriate based on a recent change in federal decisional law regarding the interpretation of a federal habeas procedural statute. The Thompson court explained that, unlike the change in federal law in Gonzalez, the change in Tennessee state law was an extraordinary circumstance because “refusing to recognize it would disserve ... comity interests ... by ignoring the state court’s view of its own law.” Thompson, 580 F.3d at 443 (internal quotation marks and emphasis omitted). Finally, in Whitmore, after dismissing the petitioner’s federal habeas claim for failure to exhaust state remedies, the district court itself recognized that it had made a mistake worthy of Rule 60(b)(6) relief. See 179 F.R.D. at 258-59. The court observed, inter alia, in terms that are strikingly applicable here, that “the petitioner [could not] have followed my instructions and exhausted his remedies, because the claim was not one that could be exhausted or that federal law requires to be exhausted.” Id. at 259. Accordingly, the court concluded that “this is the type of case that warrants the exceptional relief contemplated by Rule 60(b)(6).” Id. Likewise, the extraordinary circumstances demonstrably present here demand that Colonel Aikens be afforded Rule 60(b)(6) relief from the district court’s error. As Aikens has aptly emphasized, Appellees unlawfully — and possibly criminally — invaded Col. Aikens’ privacy by monitoring" }, { "docid": "23497594", "title": "", "text": "relief under Rule 60(b)(6). However, a movant must also file a Rule 60(b)(6) motion “within a reasonable time.” Fed.R.Civ.P. 60(c)(1). Although the Federal Rules do not mandate the specific time by which the motion must be filed, a movant’s lack of diligence can detract from the extraordinariness of the circumstance. Gonzalez, 545 U.S. at 537-38, 125 S.Ct. 2641. Whether the timing of the motion is reasonable “ordinarily depends on the facts of a given case including the length and circumstances of the delay, the prejudice to the opposing party by reason of the delay, and the circumstances compelling equitable relief.” Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir.1990). In this case, although Thompson did not bring his Rule 60(b) motion until January 20, 2006 — more than four years after the promulgation of TSCR 39 — the reasons for Thompson’s delay are understandable. First, when the Tennessee Supreme Court enacted TSCR 39 in June 2001, it would have been pointless for Thompson to file a Rule 60(b) motion because at that time, Rule 60(b) motions were deemed equivalent to successive habeas petitions. See, e.g., McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir.1996). In AbdurRahman I, this Court held for the first time that a Rule 60(b) motion which seeks to reopen a final judgment for reasons other than the merits of the petitioner’s substantive claim is not the equivalent of a successive habeas petition. 392 F.3d at 182. Although Thompson theoretically could have filed his Rule 60(b) motion immediately after Abdur’Rahman I was published, the appeal of his habeas petition was still pending on that date. This Court did not issue its mandate to the district court to dismiss Thompson’s habeas petition until December 1, 2005; prior to that date, the district court would not have had jurisdiction to hear his Rule 60(b) motion. See Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir.1993) (Generally, “a district court no longer has jurisdiction over an action as soon as a party files a notice of appeal[.]”). Because Thompson filed his Rule 60(b) motion less" }, { "docid": "19939711", "title": "", "text": "144 L.Ed.2d 1 (1999). Appellant concedes that he did not bring his Confrontation Clause issue before the Tennessee Supreme Court. Appellant argues, however, that in passing Rule 39, the Tennessee Supreme Court changed the landscape of exhaustion law in Tennessee. The rule reads in relevant part: In all appeals from criminal convictions or post-conviction relief matters from and after July 1, 1967, a litigant shall not be required to petition for rehearing or to file an application for permission to appeal to the Supreme Court of Tennessee following an adverse decision of the Court of Criminal Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Rather, when the claim has been presented to the Court of Criminal Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies available for that claim. Tenn. Sup.Ct. R. 39. Specifically, Appellant argues that Rule 39 removes review by the Tennessee Supreme Court as an “available state remedy” for any habeas claim after July 1, 1967, and that his Confrontation Clause issue has therefore not been procedurally defaulted by his failure to bring it before the Tennessee Supreme Court. Appellee does not contest that Rule 39 purports to remove Tennessee Supreme Court review as an available state remedy for habeas purposes. Instead, Appellee argues that Rule 39 violates the Supremacy Clause of the U.S. Constitution because it conflicts with federal law as established in O’Sullivan. Appellee contends that, because discretionary review is still technically available in the Tennessee Supreme Court, O’Sullivan controls, and Rule 39 cannot displace federal law on the question of what counts as available state remedies. Appellee’s alternative argument is that, even if Rule 39 did remove Tennessee Supreme Court review as an available state remedy, it did not do so “retroactively” and therefore Appellant’s habeas claim is still procedurally defaulted. Specifically, Rule 39 was promulgated after Appellant’s habeas petition had been submitted, and was promulgated even after Appellant had applied for a rehearing on the denial of his certificate of" }, { "docid": "23497590", "title": "", "text": "524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). B. Analysis “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.” Fed R. Civ. P. 60(b)(6). “[R]elief under Rule 60(b)(6) ... requires a showing of ‘extraordinary circumstances,’ ” Gonzalez, 545 U.S. at 536, 125 S.Ct. 2641, and must “be made within a reasonable time,” Fed.R.Civ.P. 60(c)(1). “[T]he decision to grant Rule 60(b)(6) relief is a case-by-case inquiry that requires the trial court to intensively balance numerous factors, including the competing policies of the finality of judgments and the incessant command of the court’s conscience that justice be done in light of all the facts.” Blue Diamond Coal Co. v. Trustees of UMWA Combined Benefits Fund, 249 F.3d 519, 529 (6th Cir.2001) (quotation marks and citation omitted). We recently found in In re Abdur'Rahman, 392 F.3d 174 (6th Cir.2004) (en banc) (“Abdur'Rahman I ”) that the promulgation of TSCR 39 was an extraordinary circumstance. Although the Supreme Court subsequently vacated that opinion in Bell v. Abdur'Rahman, 545 U.S. 1151, 125 S.Ct. 2991, 162 L.Edüd 909 (2005) (AbdurRahman IR, the rationale behind our finding in AbdurRahman I remains valid. In AbdurRahman I, the district court, similarly to the district court in this case, had dismissed the petitioner’s habeas claims as procedurally defaulted for failure to seek discretionary review in the Tennessee Supreme Court. Abdur'Rahman I, 392 F.3d at 177. In AbdurRahman I, this Court reversed the district court and held that the promulgation of TSCR 39 was an extraordinary circumstance warranting relief under Rule 60(b)(6), because the new rule indicated that the district court had failed to recognize a state’s own procedural rule — -thereby undermining the principle of comity on which AEDPA is based. Id. at 186. In Gonzalez v. Crosby, 545 U.S. 524, 533, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), the Supreme Court addressed another habeas petitioner’s Rule 60(b)(6) motion, finding in that case that the" }, { "docid": "19939713", "title": "", "text": "appealability. Appellee maintains that Rule 39, at most, removed Tennessee Supreme Court review for ha-beas petitions brought after its promulgation, and that Appellant’s habeas claim therefore remains procedurally defaulted. 1. Rule 39 has made Tennessee Supreme Court review “unavailable” The Supreme Court has recently held that even discretionary appeals by a state supreme court are available state remedies that must be exhausted for habeas relief. O’Sullivan, 526 U.S. at 847-48, 119 S.Ct. 1728. The O’Sullivan Court, however, explicitly excepted from its holding cases in which the state has explicitly disavowed state supreme court review as an “available state remedy.” Id. at 847, 119 S.Ct. 1728. In this regard, the Supreme Court stated that “we note that nothing in our decision today requires the exhaustion of any specific state remedy when a State has provided that that remedy is unavailable.” Id. The Supreme Court recognized that federal law does not prohibit a state from deciding for itself the availability of a particular state remedy. “The exhaustion doctrine, in other words, turns on an inquiry into what procedures are ‘available’ under state law ... there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is not available.” Id. at 847-48, 119 S.Ct. 1728. Rule 39 clearly removed Tennessee Supreme Court review as an antecedent for habeas purposes. By its terms, Rule 39 dictates that once the Court of Criminal Appeals has denied a claim of error, “the litigant shall be deemed to have exhausted all available state remedies available for that claim.” Tenn. Sup.Ct. R. 39. Appellee argues that Rule 39 has not technically made Tennessee Supreme Court review unavailable, however, since litigants have not been explicitly prohibited from appealing to the state supreme court. According to Appellee, Rule 39 would only have made Tennessee Supreme Court review “unavailable” if it had used explicit statements such as “a litigant shall hereby not be allowed to petition this Court for review,” or “this Court will no longer, under any circumstances, review decisions of the Court of Criminal Appeals rejecting claims of" }, { "docid": "19939724", "title": "", "text": "than creating different law on the subject. Finally, the Third Circuit invoked policy considerations, surmising that allowing retroactive application of the Pennsylvania rule would not serve the rule’s purpose of easing the burden on the state supreme court’s docket because the state supreme court had already passed on those petitions filed before the rule. Id. at 225-26 (citing Mattis, 128 F.Supp.2d at 262). Thus, the rule would merely serve to burden the federal courts with erstwhile dormant habeas cases, without providing any corresponding benefit to the state court system. Mattis, 128 F.Supp.2d at 262. The instant case seems more similar to the one in Randolph than in Wenger because of the language of Rule 39. Specifically, Rule 39 announced its applicability to “all appeals from criminal convictions or post-conviction relief matters from and after July 1, 1967.” Tenn. Sup.Ct. R. 39. This language clearly distinguishes it from the Pennsylvania rule discussed in Wenger, which used only prospective language. Similarly, this language from Rule 39 indicates that it is merely clarifying the state of Tennessee law as it has existed since 1967, not changing the law of available state remedies, making this case like the one in Randolph and distinguishing it from that in Wenger. Indeed, in its order promulgating Rule 39, the Tennessee Supreme Court explicitly stated that it was clarifying rather than changing existing law. We recognize that criminal and post-conviction relief litigants have routinely petitioned this Court for permission to appeal upon the Court of Criminal Appeals’ denial of relief in order to exhaust all available state remedies for purposes of federal habeas corpus litigation. In order to clarify that denial of relief by the Court of Criminal Appeals shall constitute exhaustion of state remedies for federal habeas corpus purposes, we hereby adopt the following Rule 39. In re: Order Establishing Rule 39, Rules of the Supreme Court of Tennessee: Exhaustion of Remedies (Tenn. Sup.Ct. June 28, 2001). This reading is also bolstered by the Tenn. R.App. P. 11 advisory committee’s note, which explains that Rule 39 “works no change to” Tenn. R.App. P. 11, the rule governing" }, { "docid": "23497562", "title": "", "text": "not specifically challenge the district court’s procedural default ruling with respect to these four ineffective assistance claims. On June 28, 2001, while Thompson’s appeal of the dismissal of his other claims was pending before this Court, the Tennessee Supreme Court promulgated Tennessee Supreme Court Rule 39 (“TSCR 39”), which clarified that litigants need not appeal criminal convictions or post-conviction relief actions to the Tennessee Supreme Court to exhaust their appeals. Thompson did not seek an expansion of this Court’s certificate of appealability after TSCR 39 was issued. As already noted, this Court initially affirmed the district court’s dismissal of Thompson’s original habeas petition in January 2003. Thompson, 315 F.3d at 571. Following this Court’s attempt to amend its ruling and the Supreme Court’s subsequent reversal, this Court issued its mandate to the district court to dismiss the petition on December 1, 2005. On January 20, 2006, Thompson filed a motion pursuant to Fed.R.Civ.P. 60(b)(6) in the district court, alleging that the promulgation of TSCR 39 was an extraordinary circumstance warranting the re-opening of his original habeas petition. On March 27, 2006, the district court denied the motion, and denied a certificate of appealability. Thompson timely appealed, and this Court granted a certificate of appealability on June 19, 2007. Thompson’s appeals of the district court’s dismissal of his petition based upon his incompetency and its denial of his Rule 60(b) motion have been consolidated before this Court. DISCUSSION I. Thompson’s Incompetency for Execution A. Standard of Review This Court reviews a district court’s dismissal of a petition brought pursuant to 28 U.S.C. § 2254 de novo, but reviews the district court’s factual findings for clear error. White v. Mitchell, 431 F.3d 517, 524 (6th Cir.2005). Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“AED-PA”), a federal court may not grant a writ of habeas corpus to a state prisoner with respect to any claim adjudicated on the merits unless (1) the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme" }, { "docid": "23497591", "title": "", "text": "”) that the promulgation of TSCR 39 was an extraordinary circumstance. Although the Supreme Court subsequently vacated that opinion in Bell v. Abdur'Rahman, 545 U.S. 1151, 125 S.Ct. 2991, 162 L.Edüd 909 (2005) (AbdurRahman IR, the rationale behind our finding in AbdurRahman I remains valid. In AbdurRahman I, the district court, similarly to the district court in this case, had dismissed the petitioner’s habeas claims as procedurally defaulted for failure to seek discretionary review in the Tennessee Supreme Court. Abdur'Rahman I, 392 F.3d at 177. In AbdurRahman I, this Court reversed the district court and held that the promulgation of TSCR 39 was an extraordinary circumstance warranting relief under Rule 60(b)(6), because the new rule indicated that the district court had failed to recognize a state’s own procedural rule — -thereby undermining the principle of comity on which AEDPA is based. Id. at 186. In Gonzalez v. Crosby, 545 U.S. 524, 533, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), the Supreme Court addressed another habeas petitioner’s Rule 60(b)(6) motion, finding in that case that the petitioner was not entitled to relief. The Court found that a recent Supreme Court decision, which changed the federal courts’ interpretation of the statute of limitations in 28 U.S.C. § 2244(d)(2) so as to render timely the petitioner’s previously time-barred claims, was not an extraordinary circumstance warranting relief pursuant to Rule 60(b)(6). Id. at 536-37, 125 S.Ct. 2641. The Gonzalez Court noted that “not every interpretation of the federal statutes setting forth the requirements for habeas provides cause for reopening cases long since final.” Id. at 536, 125 S.Ct. 2641. The Supreme Court then vacated this Court’s holding in AbdurRahman I so this Court could reconsider the case in light of Gonzalez. AbdurRahman II, 545 U.S. 1151, 125 S.Ct. 2991, 162 L.Ed.2d 909 (2005). This Court remanded the case to the district court, which found that the promulgation of TSCR 39 was still an extraordinary circumstance after Gonzalez. Abdur-Rahman v. Bell, No. 3:96-0380, 2008 WL 2002572, at *4 (M.D.Tenn. May 7, 2008). We agree that the enactment of TSCR 39 is an extraordinary circumstance, and" }, { "docid": "11723611", "title": "", "text": "Medina.” Id. at 1561. Like Felker, Medina tried to use Rule 60(b) to raise a new constitutional claim, specifically that he was incompetent to be executed. The case at hand is different from both Felker and Medina because, here, the prisoner is not trying to use Rule 60(b) to assert a constitutional claim. .As indicated in Abdur'Rahman's brief in support of his petition for a writ of certiorari, the two judgments of the Sixth Circuit for which he sought review are “embodied in a single unpublished Order incorporating a pri- or unpublished order.” Moreover the district court orders that those judgments address are also unpublished. Therefore, the facts of the case were derived from Abdur’Rahman's brief itself. . According to Abdur’Rahman's brief, see supra note 7, the district court refused to consider the merits of many of the claims he presented in his petition for writ of habeas corpus because, although he had presented these claims to the Tennessee Court of Appeals, he had failed to present them in an application for discretionary review to the Tennessee Supreme Court. The district court concluded that Adbur’Rahman had \"failed to exhaust” these claims, and \"because [he] ha[d] no remedy ... available in state court, these claims [we]re procedurally defaulted.” While die district court’s denial was pending on appeal, however, the Tennessee Supreme Court promulgated Rule 39, which provided: In all appeals from criminal convictions or post-conviction relief matters from and after July 1, 1967, a litigant shall not be required to petition for rehearing or to file an application for permission to appeal to the Supreme Court of Tennessee following an adverse decision of the Court of Criminal Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Rather, when the claim has been presented to the Court of Criminal Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies available for that claim. On automatic review of capital cases by the Supreme Court pursuant to Tennessee Code Annotated, § 39-13-206, a" }, { "docid": "23497588", "title": "", "text": "of medication, the district court did not err in holding that Thompson failed to state a claim. Even accepting all of Thompson’s allegations as true, he is not being forcibly medicated right now. Although he may be right that the state would forcibly medicate him if he stopped taking his medication voluntarily, those are not the facts he presents to us. Thompson’s argument that his medication is involuntary because he is addicted to the drugs may be accurate from a physiological perspective, but does not amount to an allegation that the state is ordering him to take medication. Because this appeal does not present the case of a prisoner who may only be competent by way of forced medication, this Court will leave the question of whether executing the “chemically competent” constitutes cruel and unusual punishment for another day. The district court’s dismissal of Thompson’s chemical competency claim is affirmed, without prejudice to Thompson raising a chemical competency claim in the future should he be forcibly medicated. III. Thompson’s Rule 60(b)(6) Motion In the appeal of his other claims, Thompson argues that the Tennessee Supreme Court’s promulgation of TSCR 39, which clarified that criminal defendants do not need to appeal their post-collateral relief actions to the Tennessee Supreme Court to exhaust their claims, demonstrates that the district court erred when it dismissed four of his ineffective assistance claims as procedurally defaulted. Thompson argues that because the district court erred, it abused its discretion in denying his subsequent motion pursuant to Fed.R.Civ.P. 60(b)(6) to re-open his original habeas petition with respect to those claims. We agree. A. Standard of Review This Court reviews the district court’s denial of a motion pursuant to Rule 60(b)(6) for abuse of discretion. Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596 (6th Cir.2006). “Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment.” Burrell v. Henderson, 434 F.3d 826, 831 (6th Cir.2006) (quotation marks and citation omitted). “Rule 60(b) proceedings are subject to only limited and deferential appellate review.” Gonzalez v. Crosby, 545 U.S." }, { "docid": "10810109", "title": "", "text": "court rule to the effect that discretionary review was not required in order for criminal .defendants to exhaust their state appeals. The rule change — unlike the precedential development in this case — unquestionably applied to the facts of Thompson, in which federal habeas had been denied on the issues in question for failure to seek such discretionary review. Id. at 433. Moreover, this court in Thompson heard simultaneously both the appeal from the denial of the original federal habeas petition— which required reversal for independent reasons — and the appeal from the Rule 60(b) denial. See id. at 428, 443-44. Most significantly, however, in Thompson we departed from the acknowledged general rule against relief from final judgments based on a change in the law on the ground that that change was one of state procedural law. We reasoned: We agree that the enactment of [Tennessee Supreme Court Rule 39] is an extraordinary circumstance, and that nothing in the Supreme Court’s opinion in Gonzalez undermined this Court’s reasoning in [In re Abdur'Rahman, 392 F.3d 174 (6th Cir.2004) (“Abdur'Rahman I ”), vacated by Bell v. Abdur'Rahman, 545 U.S. 1151, 125 S.Ct. 2991, 162 L.Ed.2d 909 (2005)]. Unlike the Supreme Court in Gonzalez, which found that a change in federal decisional law by itself was not an extraordinary circumstance, this Court in AbdurRahman I found the enactment of TSCR 39 to be an extraordinary circumstance because refusing to recognize it “would disserve the comity interests enshrined in AED-PA by ignoring the state court’s view of its own law.” 392 F.3d at 187. A federal court’s respect for another state’s law was not at issue in Gonzalez, in which the Rule 60(b) motion was based solely on a change in federal decisional law interpreting a federal statute. See also Blue Diamond, 249 F.3d at 524 (“[A] change in decisional law is usually not, by itself, an ‘extraordinary circumstance’ meriting Rule 60(b)(6) relief.”) (emphasis supplied). Because this Court’s reasoning in AbdurRahman I is still valid after Gonzalez, today we reaffirm our previous holding that a motion based upon the promulgation of TSCR 39 is" }, { "docid": "19939720", "title": "", "text": "no “actual conflict” between Rule 39 and federal law. Even beyond this, however, the language quoted above from O’Sullivan clearly shows the Supreme Court’s view that the question of what constitutes the body of “available state remedies” is one of state law, not one of federal law: “there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is not available ...” Id. (emphasis added). Finally, it should be pointed out that every other lower court that has considered, post-O’Sullivan, the effect of a rule like Rule 39 has held that such a rule permissibly eliminates state supreme court review as an available state remedy that must be exhausted. The Ninth Circuit found that O’Sullivan implicitly overruled its earlier position that Arizona could not remove state supreme court review as an available state remedy to be exhausted. Swoopes v. Sublett, 196 F.3d 1008, 1009-11 (9th Cir.1999). Similarly, the Eighth Cir- euit held that a Missouri rule clearly stated its intent to place state supreme court review outside the set of available state remedies preceding habeas relief. Randolph v. Kemna, 276 F.3d 401, 404 (8th Cir.2002); see also Mattis v. Vaughn, 128 F.Supp.2d 249, 256-61 (E.D.Pa.2001). Ap-pellee’s attempt to rely on Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir.1999), is unsuccessful because Illinois has a discretionary appeal system without a rule like the one passed in Arizona, Pennsylvania, Missouri or Tennessee, and so O’Sullivan still applies there. 2. Rule 39 operates retroactively to prevent procedural default by Appellant in this case Next we must address whether Rule 39 applies “retroactively” to Appellant’s case in particular. Two Circuit Courts have considered whether a rule like Rule 39 can apply to habeas petitions filed before their promulgation, and have come to opposite conclusions. Dealing with the Missouri rule, the Eighth Circuit rejected the State’s argument that “because the amendment to Rule 83.04 has an effective date of July 1, 2002, its invocation” did not help the petitioner, who filed for habeas relief before that date. Randolph, 276 F.3d at 404. The" }, { "docid": "14562639", "title": "", "text": "direct the District Court to rule on the merits of the Rule 60(b) motion. On October 24, 2002, just two weeks- before oral argument, the Court entered an order directing the parties to file supplemental briefs addressing these two questions: “Did the Sixth Circuit have jurisdiction to review the District Court’s order, dated November 27,2001, transferring petitioner’s Rule 60(b) motion to the Sixth Circuit pursuant to 28 U. S. C. § 1631? Does this Court have jurisdiction to review the Sixth Circuit’s order, dated February 11, 2002, denying leave to file a second habeas corpus petition?” Post, p. 996. See Silverburg v. Evitts, 993 F. 2d 124 (CA6 1993). Other Circuits had held that the exhaustion requirement may be satisfied without seeking discretionary review in a State’s highest court. See, e. g., Dolny v. Erickson, 32 F. 3d 381 (CA8 1994); Boerckel v. O’Sullivan, 135 F. 3d 1194 (CA7 1998). Tennessee Supreme Court Rule 39 reads, in relevant part: “In all appeals from criminal convictions or post-conviction relief matters from and after July 1, 1967, a litigant shall not be required to petition for rehearing or to file an application for permission to appeal to the Supreme Court of Tennessee following an adverse decision of the Court of Criminal Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Rather, when the claim has been presented to the Court of Criminal Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies available for that claim.” This type of action by the Tennessee Court was anticipated — indeed, invited — by the concurring opinion in O’Sullivan v. Boerckel, 526 U. S. 838, 849-850 (1999) (opinion of Souter, J.). Federal Rule of Civil Procedure 60(b) provides, in part: “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" }, { "docid": "23497561", "title": "", "text": "and death sentence, Thompson raised twenty-two ineffective assistance of counsel claims. Four of those claims were that his trial counsel (1) did not confront and cross-examine a psychiatric expert testifying for the government, (2) did not object to the prosecutor’s improper references to Thompson’s failure to testify or present a defense, (3) did not inform the court about the prosecutor’s racist remark in the presence of the jury, and (4) failed to present mitigating evidence during the sentencing phase to show he would not be disruptive in prison. On collateral review, Thompson had appealed these four claims to Tennessee’s court of criminal appeals, but had not sought discretionary review of these claims with the Tennessee Supreme Court. When the district court dismissed Thompson’s first habeas petition on February 17, 2000, it dismissed these four ineffective assistance claims for procedural default because of Thompson’s failure to seek discretionary review of the claims. The district court therefore did not reach the merits of these claims. When Thompson appealed the district court’s dismissal of his petition, he did not specifically challenge the district court’s procedural default ruling with respect to these four ineffective assistance claims. On June 28, 2001, while Thompson’s appeal of the dismissal of his other claims was pending before this Court, the Tennessee Supreme Court promulgated Tennessee Supreme Court Rule 39 (“TSCR 39”), which clarified that litigants need not appeal criminal convictions or post-conviction relief actions to the Tennessee Supreme Court to exhaust their appeals. Thompson did not seek an expansion of this Court’s certificate of appealability after TSCR 39 was issued. As already noted, this Court initially affirmed the district court’s dismissal of Thompson’s original habeas petition in January 2003. Thompson, 315 F.3d at 571. Following this Court’s attempt to amend its ruling and the Supreme Court’s subsequent reversal, this Court issued its mandate to the district court to dismiss the petition on December 1, 2005. On January 20, 2006, Thompson filed a motion pursuant to Fed.R.Civ.P. 60(b)(6) in the district court, alleging that the promulgation of TSCR 39 was an extraordinary circumstance warranting the re-opening of his original" }, { "docid": "11723612", "title": "", "text": "the Tennessee Supreme Court. The district court concluded that Adbur’Rahman had \"failed to exhaust” these claims, and \"because [he] ha[d] no remedy ... available in state court, these claims [we]re procedurally defaulted.” While die district court’s denial was pending on appeal, however, the Tennessee Supreme Court promulgated Rule 39, which provided: In all appeals from criminal convictions or post-conviction relief matters from and after July 1, 1967, a litigant shall not be required to petition for rehearing or to file an application for permission to appeal to the Supreme Court of Tennessee following an adverse decision of the Court of Criminal Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Rather, when the claim has been presented to the Court of Criminal Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies available for that claim. On automatic review of capital cases by the Supreme Court pursuant to Tennessee Code Annotated, § 39-13-206, a claim presented to the Court of Criminal Appeals shall be considered exhausted even when such claim is not renewed in the Supreme Court on automatic review. Tenn. Sup.Ct. R. 39. Abdur’Rahman moved under Rule 60(b) for relief from the district court's denial of habeas corpus, asserting that, under Tennessee Supreme Court Rule 39, he had indeed exhausted his claims, and, therefore, the district court should review their merits. . Mobley does not indicate under which subsection of Rule 60(b) he seeks relief. The actual language of Mobley’s motion makes clear, however, that Mobley is asserting fraud upon the district court and therefore seeking relief under Rule 60(b)(3): The grounds for Mr. Mobley's motion relate directly to the integrity of this Court's deci-sionmaking process. When this Court previously considered the habeas petition, it did so based upon facts and assertions which respondent was aware (or should have been aware) were materially false. The Court’s resulting judgment denying relief was thereby tainted by the fraudulent misrepresentations of respondent. (emphasis added). . In his habeas corpus petition, Mobley" }, { "docid": "19939714", "title": "", "text": "procedures are ‘available’ under state law ... there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is not available.” Id. at 847-48, 119 S.Ct. 1728. Rule 39 clearly removed Tennessee Supreme Court review as an antecedent for habeas purposes. By its terms, Rule 39 dictates that once the Court of Criminal Appeals has denied a claim of error, “the litigant shall be deemed to have exhausted all available state remedies available for that claim.” Tenn. Sup.Ct. R. 39. Appellee argues that Rule 39 has not technically made Tennessee Supreme Court review unavailable, however, since litigants have not been explicitly prohibited from appealing to the state supreme court. According to Appellee, Rule 39 would only have made Tennessee Supreme Court review “unavailable” if it had used explicit statements such as “a litigant shall hereby not be allowed to petition this Court for review,” or “this Court will no longer, under any circumstances, review decisions of the Court of Criminal Appeals rejecting claims of error.” Appellee’s argument, however, fails to grasp the meaning of the word “available” as it is used in O’Sullivan, and instead dwells upon a hy-pertechnical interpretation of that term. Appellee’s misinterpretation is revealed by the O’Sullivan Court’s examples of what might constitute making state supreme court review unavailable: namely, rules passed by the Supreme Courts of South Carolina and Arizona. O’Sullivan, 526 U.S. at 847, 119 S.Ct. 1728. Although the O’Sullivan majority declined to rule definitively on whether those rules would change the law on exhaustion and procedural default, it did recognize that the rules were trying to make state supreme court review unavailable in those states for habeas purposes. Id. The South Carolina Supreme Court, for example, declared: We recognize that criminal and post-conviction relief litigants have routinely petitioned this Court for writ of certiora-ri upon the Court of Appeals’ denial of relief in order to exhaust all available state remedies. We therefore declare that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for" }, { "docid": "19939710", "title": "", "text": "Court promulgated Tennessee Supreme Court Rule 39, which Appellant argues removes the procedural default assessed against his Confrontation Clause claim. Accordingly, on August 16, 2001, this court vacated the denial of Appellant’s certificate of appealability, and granted a certificate on the following two issues: 1) whether, in light of Tennessee Supreme Court Rule 39, Appellant’s Confrontation Clause claim is procedurally defaulted; and 2) if not, whether the admission of the co-defendant’s statements violated Appellant’s rights under the Confrontation Clause. II. Discussion This court reviews a district court’s legal conclusions in a habeas proceeding de novo and its factual findings for clear error. E.g., Miller v. Francis, 269 F.3d 609, 613 (6th Cir.2001). A. Procedural Default Appellant acknowledges that, were it not for Rule 39, his claim would be procedurally defaulted because review by a state supreme court is normally an “available state remedy” that must be exhausted before a federal habeas petition can be filed, even if the state supreme court has only discretionary appeals. O’Sullivan v. Boerckel, 526 U.S. 838, 847-48, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Appellant concedes that he did not bring his Confrontation Clause issue before the Tennessee Supreme Court. Appellant argues, however, that in passing Rule 39, the Tennessee Supreme Court changed the landscape of exhaustion law in Tennessee. The rule reads in relevant part: In all appeals from criminal convictions or post-conviction relief matters from and after July 1, 1967, a litigant shall not be required to petition for rehearing or to file an application for permission to appeal to the Supreme Court of Tennessee following an adverse decision of the Court of Criminal Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Rather, when the claim has been presented to the Court of Criminal Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies available for that claim. Tenn. Sup.Ct. R. 39. Specifically, Appellant argues that Rule 39 removes review by the Tennessee Supreme Court as an “available state remedy” for" }, { "docid": "19939712", "title": "", "text": "any habeas claim after July 1, 1967, and that his Confrontation Clause issue has therefore not been procedurally defaulted by his failure to bring it before the Tennessee Supreme Court. Appellee does not contest that Rule 39 purports to remove Tennessee Supreme Court review as an available state remedy for habeas purposes. Instead, Appellee argues that Rule 39 violates the Supremacy Clause of the U.S. Constitution because it conflicts with federal law as established in O’Sullivan. Appellee contends that, because discretionary review is still technically available in the Tennessee Supreme Court, O’Sullivan controls, and Rule 39 cannot displace federal law on the question of what counts as available state remedies. Appellee’s alternative argument is that, even if Rule 39 did remove Tennessee Supreme Court review as an available state remedy, it did not do so “retroactively” and therefore Appellant’s habeas claim is still procedurally defaulted. Specifically, Rule 39 was promulgated after Appellant’s habeas petition had been submitted, and was promulgated even after Appellant had applied for a rehearing on the denial of his certificate of appealability. Appellee maintains that Rule 39, at most, removed Tennessee Supreme Court review for ha-beas petitions brought after its promulgation, and that Appellant’s habeas claim therefore remains procedurally defaulted. 1. Rule 39 has made Tennessee Supreme Court review “unavailable” The Supreme Court has recently held that even discretionary appeals by a state supreme court are available state remedies that must be exhausted for habeas relief. O’Sullivan, 526 U.S. at 847-48, 119 S.Ct. 1728. The O’Sullivan Court, however, explicitly excepted from its holding cases in which the state has explicitly disavowed state supreme court review as an “available state remedy.” Id. at 847, 119 S.Ct. 1728. In this regard, the Supreme Court stated that “we note that nothing in our decision today requires the exhaustion of any specific state remedy when a State has provided that that remedy is unavailable.” Id. The Supreme Court recognized that federal law does not prohibit a state from deciding for itself the availability of a particular state remedy. “The exhaustion doctrine, in other words, turns on an inquiry into what" } ]

[ { "docid": "16433952", "title": "", "text": "the crime.” Nevils, 598 F.3d at 1167. Applying these standards to the facts of this case, we conclude there was sufficient evidence to support conviction on all counts. A. Materiality in Securities Fraud Appellants argue there was insufficient evidence that the statements at issue in the securities fraud counts were material. Under 15 U.S.C. § 78j(b), any person who uses or employs a manipu lative or deceptive device in connection with the sale of any security commits securities fraud. SEC Rule 10b-5, implementing the statute, forbids the making of “any untrue statement of a material fact.” 17 C.F.R. § 240.10b-5(b). Materiality is an element of securities fraud. In re Cutera Secs. Litig., 610 F.3d 1103, 1108 (9th Cir.2010) (“Central to a 10b-5 claim is the requirement that a misrepresentation or omission of fact must be material.”) For purposes of securities fraud, “materiality depends on the significance the reasonable investor would place on the withheld or misrepresented information.” Basic Inc. v. Levinson, 485 U.S. 224, 240, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). A statement is material if “a reasonable investor would have considered it useful or significant.” United States v. Smith, 155 F.3d 1051, 1064 (9th Cir.1998). The standard of materiality is an objective one. United States v. Reyes, 577 F.3d 1069, 1076 (9th Cir.2009). Appellants first contend that the government failed to prove that their misrepresentations had any effect on UniDyn’s stock prices or the behavior of independent investors. They argue instead that UniDyn’s stock rose due to external market forces, namely, the dot-com bubble. This argument fails. Materiality in securities fraud does not depend on demonstration of a market reaction to the misstatements. No. 84 Empl’r-Teamster Joint Council Pension Trust Fund v. Am. West Holding Corp., 320 F.3d 920, 934-35 (9th Cir.2003). Nor is the reliance of individual investors required to find a 10b-5 violation by misrepresentation. See S.E.C. v. Rana Research, Inc., 8 F.3d 1358, 1364 (9th Cir.1993). The evidence at trial proved that appellants made false statements about the viability of UniDyn’s products, its transactions and business dealings, and the identity of its shareholders. “[I]nformation regarding" } ]

[ { "docid": "23367480", "title": "", "text": "effective assistance of counsel prove that he was prejudiced by the lawyer’s incompetence....”); United States v. Lewis (Beau Lee Lewis), 611 F.3d 1172, 1177 (9th Cir.2010) (\"Defendant fails to identify any actual prejudice that occurred as a result of being represented by other counsel, who mounted a highly competent and vigorous defense.”); cf. United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981) (\"The premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel’s representation or has produced some other prejudice to the defense. Absent such impact ... there is no basis for imposing a remedy in that proceeding. ... ”). . \"Violations of section 10(b) and Rule 10b-5 can give rise to both civil liability and criminal liability.” United States v. Laurienti, 611 F.3d 530, 537 (9th Cir.2010) (citing Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980)). The basic elements for a Rule 10b-5 charge based upon misstatements or omissions in a civil context include the requirement that the government prove that the defendant \"(1) made a misrepresentation or omission (2) of material fact, (3) with scienter, (4) in connection with the purchase or sale of securities, and (5) by virtue of the requisite jurisdictional means.” SEC v. Wolfson, 539 F.3d 1249, 1256 (10th Cir.2008); accord SEC v. Curshen, 372 Fed.Appx. 872, 877 (10th Cir.2010); cf. Wenger, 427 F.3d at 854 (\"Fraudulent intent is an element of a Section 10(b) offense.”). The jury instructions on the 10b-5 allegations in this case were stated in a manner that was generally consistent with the foregoing requirements. See R., Vol. VIII, at 2544-45 (Jury Instructions, given Apr. 29, 2010). The primary distinction between 10b-5 actions in the civil and criminal context is that in the latter the \"government must prove the offense beyond a reasonable doubt.” United States v. Gansman, 657 F.3d 85, 91 n. 7 (2d Cir.2011). . Mr. Gordon contends in passing that many of the \"falsehoods” and instances of alleged misconduct simply were not actionable" }, { "docid": "5434946", "title": "", "text": "the statements made, in the light of the circumstances under which they were made, not misleading, or “(c) To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” . Ironically, the Delaware courts did away with this rule shortly after Santa Fe Industries was decided. Singer v. Magnavox Co., 380 A.2d 969 (Del. 1977); Kemp v. Angel, 381 A.2d 241 (Del.Ch.1977). . See footnote 2, supra. . TSC Industries was a decision under the federal proxy rules, but its definition of materiality was cited in Santa Fe Industries, 430 U.S. at 474 n.14, 97 S.Ct. 1292, and this court has applied a similar standard in Rule 10b-5 cases as well. See Zweig v. Hearst Corp., 594 F.2d 1261 at 1264-67 (9th Cir., 1979); Lewelling v. First California Co., 564 F.2d 1277 (9th Cir. 1977). . In cases such as this, where the deception is found in nondisclosure affecting shareholders’ decisions whether or not to sue to block a corporate transaction, we believe the proper inquiry on the materiality question is what a reasonable shareholder would have considered significant. To the extent that it differs (by focusing on the expectations of a reasonable director), the Second Circuit’s analysis in Goldberg v. Meridor, supra,' is disapproved. In Goldberg, the result could have been the same under our shareholder-focused materiality analysis. . Note, Suits for Breach of Fiduciary Duty Under Rule 10b-5 After Santa Fe Industries, Inc. v. Green, 91 Harv.L.Rev. 1874 (1978). . See ABA Code of Professional Responsibility, Disciplinary Rule 5-105, and Ethical Consideration 5-18." }, { "docid": "3727756", "title": "", "text": "things, that the [Defendants ..., and others, including ... Eisenberg, had purchased [the] securities based upon advance knowledge of the reports, and intended to profit on the sale of these securities once the dissemination of the reports had caused the price of [the] securities to rise. Count One, II14 (emphasis added); see also, id., ¶¶ 23, Count Eight, ¶ 5. As was held in Eisenberg, these allegations charge the Defendants with disseminating to the investing public “misleading and incomplete statements regarding certain securities____” 773 F.Supp. at 723. The disclaimer in the reports prepared by Cannistraro is, at best, incomplete to be false and misleading. The motion to dismiss Counts One, Two and Eight because the premise of the Second Superseding Indictment is nondisclosure is denied. B. Scalping Schemes The Defendants argue the alleged scalping schemes do not state a violation of the securities laws. Specifically, they argue a Section 10(b) violation cannot be premised on allegations of scalping absent a fiduciary duty. Securities Fraud Moving Brief at 7. They further argue that the reliance on Zweig v. Hearst Corp., 594 F.2d 1261 (9th Cir.1979), is unjustified because it is a preChiarella decision. Securities Fraud Moving Brief at 8. They further argue Eisenberg is erroneous in that it distinguished between mandating disclosure under Chiarella because of a fiduciary duty and mandating full disclosure once a public statement has been made omitting material facts. Securities Fraud Moving Brief at 8-9. The Defendants fail to recognize, however, that the Third Circuit has interpreted Chiarella and Dirks to “involve only the question of when outsiders and nonfiduciaries will be treated as insiders or fiduciaries for purposes of the affirmative duty to disclose or refrain from trading.” Deutschman v. Beneficial Corp., 841 F.2d 502, 506 (3d Cir.1988), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989); accord Eisenberg, 773 F.Supp. at 719 n. 57. It further stated: “Nothing in those opinions, however, can be construed to require the existence of a fiduciary relationship between a section 10(b) defendant and the victim of that defendant’s affirmative misrepresentation.” Deutschman, 841 F.2d at 506. Once" }, { "docid": "13717973", "title": "", "text": "10b-5 to disclose the fact that he planned to sell his stock in Fibreboard. Insider status is normally reserved for officers, directors, controlling shareholders of a corporation or to those having a special relationship affording access to inside information. Chiarella v. United States, 445 U.S. 222, 227, 100 S.Ct. 1108, 1114, 63 L.Ed.2d 348 (1980); SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 1005 (2d Cir. 1968), cert. denied, 404 U.S. 1005, 92 S.Ct. 561, 30 L.Ed.2d 558 (1971). The test to determine insider status is whether the person has access to confidential information intended to be available only for a corporate purpose and not for the personal benefit of anyone. Matter of Cady, Roberts & Co., 40 SEC 907, 912 (1961). Simkins had no such access. As the district court pointed out, “[h]e was not a controlling shareholder ... he did not even have representation on the board of directors and it is not contended that he had access to any non-public corporate information.” Moreover, the duty of disclosure does not encompass a duty to confer upon outside investors the benefit of the insider’s superi- or financial or other expert analysis. Texas Gulf Sulphur, 401 F.2d at 848. Because Simkins’ decision to sell his Fibreboard holdings was based on his analysis of the market, and not on insider corporate information, he cannot be held liable for any failure to disclose. B. Market Manipulation Feldman contends that Simkins’ conduct constituted market manipulation. He relies principally on Zweig v. Hearst Corp., 594 F.2d 1261 (9th Cir. 1979). Even assuming the continuing vitality of Zweig (see the district court’s opinion 492 F.Supp. at 845 questioning the vitality of Zweig in light of Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980)), we conclude defendant is not liable for market manipulation. In Zweig, plaintiffs sued a financial columnist, alleging that he had violated Section 10(b) by purchasing stock in a company at a discount, publishing a favorable column about the company, waiting for a resulting rise in the market, and then selling the stock at a profit." }, { "docid": "22084944", "title": "", "text": "party whose acts in furtherance of the distribution were de minimis and who should not be held liable for registration violations. See Katz v. Amos Treat & Co., 411 F.2d 1046, 1053 (2d Cir. 1969). But in practice, the standards differ little, for no court using the “necessary participant” test has found liable a defendant whose acts were not a substantial factor in the sales transaction. See SEC v. International Chemical Development Corp., supra; SEC v. North American Research & Development Corp., supra; Pennaluna & Co. v. SEC, supra; SEC v. Culpepper, supra; SEC v. Chinese Consolidated Benevolent Association, supra. We need not decide which standard we would apply, because Murphy is clearly liable under either. The conclusion that Murphy engaged in steps necessary to the distribution is inescapable. He devised the corporate financing scheme for Intertie, without which there would have been no limited partnerships. He prepared and reviewed offering memoranda; he met personally with broker-dealers, investors and their representatives; and he spoke at broker-dealer sales seminars. There can be no gainsaying the importance of these acts: Murphy’s extensive role in facilitating the transactions clearly was a substantial factor in the sales of unregistered securities. Thus, the district court properly held Murphy liable as a participant in the offer and sale of unregistered securities. III. JUDGMENT AFTER TRIAL ON THE FRAUD COUNTS Murphy argues that error in the trial court’s ruling on the summary judgment motion also invalidated the judgment after trial on the fraud count. Because the summary judgment ruling was correct, Murphy’s argument fails. Murphy also contends that the court erred in finding him liable for securities fraud because his omissions were not material and because he did not act with scienter. These contentions are meritless. We have already recited numerous significant facts about Intertie and its role in the success of the cable systems that Murphy and Intertie failed to reveal. There can be no doubt that a reasonable investor would consider this omitted information important in making an investment decision. Zweig v. Hearst Corp., 594 F.2d 1261, 1266 (9th Cir. 1979), citing TSC Industries v." }, { "docid": "22084984", "title": "", "text": "U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972) (“Under the circumstances of this case, involving primarily a failure to disclose, positive proof of reliance is not a prerequisite to recovery. All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of this decision.”); Zweig v. Hearst Corp., 594 F.2d 1261, 1271 (9th Cir. 1979); Rifkin v. Crow, 574 F.2d 256, 263 (5th Cir. 1978). This conclusion is not impaired by the Supreme Court’s decision in Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980). See generally, H. Pitt, Chiarella Court: Limits on Novel 10b-5 Actions, Legal Times of Washington (March 31, 1980). While it seems that the majority opinion interprets Affiliated Ute Citizens quite narrowly, 445 U.S. at 250-251, 100 S.Ct. at 1125-26 (Blackmun, J., dissenting), the portion of Affiliated Ute Citizens that it restricts is that which had been thought to permit imposition of liability for omissions absent a fiduciary relationship between plaintiff and defendant. Id.; see Zweig v. Hearst Corp., supra, 594 F.2d at 1268. Reliance continues to be unnecessary to 10b-5 liability for material omissions after Chiarella. Chiarella v. United States, supra. Moreover, even if reliance were necessary, Murphy could not obtain reversal by raising the point at oral argument when he failed to raise the issue below. Nor does Chiarella’s establishment of a “duty” requirement in omission cases save Murphy. The Court held that § 10(b) liability for silence in connection with the purchase or sale of securities “is premised upon a duty to disclose arising from a relationship of trust and confidence between parties to a transaction.” Id.,-U.S. at-, 100 S.Ct. at 1115. As the architect of the investment scheme, Murphy unquestionably had such a duty at the time of his negotiations with prospective purchasers of limited partnership shares. See id., at-n. 8, 100 S.Ct. at 1114 n. 8 (discussing with approval Cady, Roberts & Co., 40 S.E.C. 907 (1961): “The Commission embraced the reasoning of Judge Learned Hand that ‘the" }, { "docid": "3727758", "title": "", "text": "a defendant chooses to speak, he or she is not free to lie or mislead. Id. A misrepresentation of a material fact is subject to Section 10(b) and Rule 10b-5 liability. As stated in Eisenberg: “The purpose of Section 10(b) and Rule 10b-5 is to ensure that ‘investors obtain disclosure of material facts in connection with their investment decisions regarding the purchase or sale of securities.’ ” 773 F.Supp. at 721 (citations omitted). An omitted fact is material if there is substantial likelihood the investor would consider it important in making an investment decision. Basic Inc., 485 U.S. at 231, 108 S.Ct. at 983 (adopting definition of materiality in context of Section 14(a) of Exchange Act set forth in TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976)); see also Eisenberg, 773 F.Supp. at 722. The Defendants’ criticism of Eisenberg ’s reliance on Zweig is misplaced. The Defendants fail to recognize that Eisenberg acknowledged the vitality of Zweig's holding, that the columnist had a fiduciary duty, is questionable in light of Chiarella. 773 F.Supp. at 722. It relied, however, on the fact that Zweig “was premised in part on the [court’s] conclusion that the columnist made affirmative misrepresentations which were rendered misleading by virtue of omissions of material facts.” Id. at 722 (citing Zweig, 594 F.2d at 1271). The Defendants also disapprove of the reliance in Eisenberg on SEC v. Blavin, 557 F.Supp. 1304 (E.D.Mich.1983), aff'd, 760 F.2d 706 (6th Cir.1985). The Defendants argue Blavin does not support a finding of a distinction between insider trading cases and other cases where the liability is premised on the misleading nature of statements. Securities Fraud Moving Brief at 13. The district court’s holding in Blavin is set forth in Eisenberg. 773 F.Supp. at 722-23. On appeal, the Circuit affirmed the trial court’s finding that Blavin was liable under Section 10(b) and the Investment Advisors Act of 1940, 15 U.S.C. § 80b-6. Blavin, 760 F.2d at 710-12. The Circuit focused on the materiality of the misstatements contained in the newsletter regarding Blavin’s holdings in" }, { "docid": "3727757", "title": "", "text": "Zweig v. Hearst Corp., 594 F.2d 1261 (9th Cir.1979), is unjustified because it is a preChiarella decision. Securities Fraud Moving Brief at 8. They further argue Eisenberg is erroneous in that it distinguished between mandating disclosure under Chiarella because of a fiduciary duty and mandating full disclosure once a public statement has been made omitting material facts. Securities Fraud Moving Brief at 8-9. The Defendants fail to recognize, however, that the Third Circuit has interpreted Chiarella and Dirks to “involve only the question of when outsiders and nonfiduciaries will be treated as insiders or fiduciaries for purposes of the affirmative duty to disclose or refrain from trading.” Deutschman v. Beneficial Corp., 841 F.2d 502, 506 (3d Cir.1988), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989); accord Eisenberg, 773 F.Supp. at 719 n. 57. It further stated: “Nothing in those opinions, however, can be construed to require the existence of a fiduciary relationship between a section 10(b) defendant and the victim of that defendant’s affirmative misrepresentation.” Deutschman, 841 F.2d at 506. Once a defendant chooses to speak, he or she is not free to lie or mislead. Id. A misrepresentation of a material fact is subject to Section 10(b) and Rule 10b-5 liability. As stated in Eisenberg: “The purpose of Section 10(b) and Rule 10b-5 is to ensure that ‘investors obtain disclosure of material facts in connection with their investment decisions regarding the purchase or sale of securities.’ ” 773 F.Supp. at 721 (citations omitted). An omitted fact is material if there is substantial likelihood the investor would consider it important in making an investment decision. Basic Inc., 485 U.S. at 231, 108 S.Ct. at 983 (adopting definition of materiality in context of Section 14(a) of Exchange Act set forth in TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976)); see also Eisenberg, 773 F.Supp. at 722. The Defendants’ criticism of Eisenberg ’s reliance on Zweig is misplaced. The Defendants fail to recognize that Eisenberg acknowledged the vitality of Zweig's holding, that the columnist had a fiduciary duty," }, { "docid": "5246792", "title": "", "text": "plaintiff and defendant here, and there seldom would be one unless defendant were the buyer, seller or broker. Thus the court is confronted with the necessity of manufacturing the relationship from a tenuously defined benefit that the defendant receives from the transaction, as here, or dropping the requirement altogether, as it did in Zweig v. Hearst Corp., 594 F.2d 1261, 1267 (9th Cir. 1979). We may avoid this problem quite easily by recognizing that the flexible duty negligence standard is just that — a negligence standard. We have followed the Supreme Court’s dictates in Hochfelder and required scienter instead of negligence. We should recognize that it is, therefore, no longer appropriate to apply a duty standard that was designed to compartmentalize and simplify a negligence inquiry. As does the case before us, Hochfelder addressed the liability of an accounting firm for omissions made in connection with the sale of a security. The Supreme Court inquired into scienter and made no separate duty inquiry, and we should do the same. . In Nelson v. Serwold, supra, 576 F.2d at 1338, we held only that “[t]he evidence supports a finding of recklessness, or some degree of intent not sufficiently aggravated to be characterized as ‘deliberate and cold-blooded.’ ” . The Second Circuit left open the question whether it would find 10b-5 liability when recklessness was determined under the less strict test established in Stern v. American Bankshares Corp., 429 F.Supp. 818, 826 (E.D.Wis.1977): “plaintiff must allege that the defendants knew or should have known of the facts and circumstances concerning the fraud.” See Rolf v. Blyth, Eastman Dillon & Co., Inc., 570 F.2d at 47 n. 16. . These concepts remain central to 10b-5 liability determinations. The Supreme Court framed the duty approach in Ute in terms of materiality and causation, Affiliated Ute Citizens v. United States, supra, 406 U.S. at 154, 92 S.Ct. 1456; and the lower courts continue to require these elements. See, e. g., Zweig v. Hearst Corp., 594 F.2d 1261, 1266 (9th Cir. 1979); Nelson v. Serwold, supra, 576 F.2d at 1335; St. Louis Union Trust Co. v." }, { "docid": "22084945", "title": "", "text": "of these acts: Murphy’s extensive role in facilitating the transactions clearly was a substantial factor in the sales of unregistered securities. Thus, the district court properly held Murphy liable as a participant in the offer and sale of unregistered securities. III. JUDGMENT AFTER TRIAL ON THE FRAUD COUNTS Murphy argues that error in the trial court’s ruling on the summary judgment motion also invalidated the judgment after trial on the fraud count. Because the summary judgment ruling was correct, Murphy’s argument fails. Murphy also contends that the court erred in finding him liable for securities fraud because his omissions were not material and because he did not act with scienter. These contentions are meritless. We have already recited numerous significant facts about Intertie and its role in the success of the cable systems that Murphy and Intertie failed to reveal. There can be no doubt that a reasonable investor would consider this omitted information important in making an investment decision. Zweig v. Hearst Corp., 594 F.2d 1261, 1266 (9th Cir. 1979), citing TSC Industries v. Northway, Inc., 426 U.S. 438, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976); see Kidwell ex rel. Penfold v. Meikle, 597 F.2d 1273, 1293 (9th Cir. 1979); SEC v. Bausch & Lomb, Inc., 565 F.2d 8, 15 (2d Cir. 1977); Lewelling v. First California Co., 564 F.2d 1277, 1279 (9th Cir. 1977). Surely the materiality of information relating to financial condition, solvency and profitability is not subject to serious challenge. See SEC v. United Financial Group, Inc., 474 F.2d 354, 358 n. 9 (9th Cir. 1973); SEC v. Universal Service Association, 106 F.2d 232, 239 (7th Cir. 1939), cert. denied, 308 U.S. 622, 60 S.Ct. 378, 84 L.Ed. 519 (1940). A prospective purchaser of a limited partnership interest would have considered it quite significant that the viability of the entity in which he was investing was dependent on the ability of Intertie continuously to generate new capital and that the promised tax shelter might prove more illusory than real. Thus, Murphy’s argument that we should hold the district court’s finding of materiality clearly erroneous is frivolous." }, { "docid": "2553606", "title": "", "text": "T.S.C. Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 5. Ct. 2126, 2132, 48 L.Ed.2d 757 (1976) (setting forth definition of materiality in context of section 14(a) of the Exchange Act); Bolger v. First State Financial Services, 759 F.Supp. 182, 193 (D.N.J.1991) (same). Section 10(b) and Rule 10b-5 “must be read ‘flexibly, not technically and restrictively.' ” Angelastro, 764 F.2d at 942 (quoting Superintendent of Insurance v. Bankers Life and Casualty Co., 404 U.S. 6, 12, 92 S.Ct. 165, 169, 30 L.Ed.2d 128 (1971)). Thus, a wide variety of fraudulent schemes have been found to come within the purview of these sections. For example, allegations of churning, by which a securities broker buys and sells securities for the purpose of generating commissions and without regard to the customer’s investment objectives, has been found to state a claim under Rule 10b-5. See, e.g., Costello v. Oppenheimer & Co., 711 F.2d 1361, 1368 (7th Cir.1983); Thompson v. Smith Barney, Harris Upham & Co., 709 F.2d 1413 (11th Cir.1983); In re Catanella and E.F. Hutton and Co., Securities Litigation, 583 F.Supp. 1388, 1405, 1410-11 (E.D.Pa.1984). Most significantly, the practice known as “scalping” has been found to violate these provisions of the securities laws. In Zweig v. Hearst Corp., 594 F.2d 1261 (9th Cir. 1979), the parties to a corporate merger sued a newspaper columnist under Section 10(b). The columnist had purchased stock in a company and had then written a favorable article about the company. The plaintiffs asserted the columnist violated Section 10(b) because he had a duty to disclose to his readers his financial interest in the stock and failed to make such disclosure. While the continued vitality of Zweig’s holding concerning the columnist’s duty is unclear in light of Chiarella, the reasoning of the court remains persuasive. In reversing the trial court’s dismissal of the action, the Ninth Circuit stated that a conflict of interest by the columnist was a material fact which his readers were entitled to know: “While Rule 10b-5 should not be extended to require every financial columnist or reporter to disclose his or her portfolio" }, { "docid": "8782273", "title": "", "text": "970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978). The undisputed facts in this case establish that there was a series of six major stock acquisitions in less than four years, that more than 22 million shares of Teledyne common stock were purchased by the corporation, and that those shareholders retaining their stock have acquired a greater proportion of control of the corporation as well as higher per share earnings (a result that is obvious given the first two facts). Even if these facts alone were sufficient to raise an inference that appellants had a long-range plan, they do not raise the slightest inference that the plan was unlawful or in any way intended to defraud investors. In fact, each of the individual appellees has denied the very existence of a plan, thus adequately rebutting the allegations of conspiracy. Appellants, on the other hand, have failed “to come forward with specific, factual support of [their] allegations of conspiracy,” ALW, Inc. v. United Air Lines, Inc., 510 F.2d 52, 55 (9th Cir. 1975). The mere fact that the stock transactions occurred cannot defeat a, motion for summary judgment in the absence of “any significant probative evidence tending to support the complaint.” First National Bank v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); Mutual Fund Investors v. Putnam Management Co., 553 F.2d 620, 624 (9th Cir. 1977). We agree with the district court that from the undisputed facts presented it would not be reasonable to find a scheme to defraud that violates § 10(b) or Rule 10b-5(a). Thus, summary judgment was appropriate on this claim for relief. b. Nondisclosure Material facts must be disclosed unless some doctrine limits the duty to disclose. Zweig v. Hearst Corp., 594 F.2d 1261, 1266 (9th Cir. 1979). The test for materiality is whether there is a substantial likelihood that a reasonable investor would consider the fact important in making an investment decision. Id. It is a violation of the securities law to omit to state a material fact if it is “necessary in order to make the statements made," }, { "docid": "20998201", "title": "", "text": "affirmatively misled investors into purchasing its stock by providing materially false or incomplete information. See generally Shaw, 82 F.3d at 1202; Backman v. Polaroid Corp., 910 F.2d 10, 16 (1st Cir.1990) (en banc); Roeder v. Alpha Industries, Inc., 814 F.2d 22, 26 (1st Cir.1987). Corporate insiders are held to fiduciary standards to prevent them from taking unfair advantage of uninformed investors. Chiarella, 445 U.S. at 229, 100 S.Ct. at 1115. A duty derivative of that imposed on insiders is also applied to “tippees,” SEC v. Maio, 51 F.3d 623, 631-633 (7th Cir.1995), and to “scalpers” (ostensibly disinterested investment advisers recommending stocks without revealing their personal stake in the transaction). See SEC v. Blavin, 760 F.2d 706, 711 (6th Cir.1985). As plaintiffs correctly state, a viable section 10(b) claim can be pled without alleging the existence of a fiduciary relationship. Most of the cases cited by plaintiffs involve scalping. See United States v. Russo, 74 F.3d 1383 (2d Cir.1996) (criminal stock parking); United States v. Regan, 937 F.2d 823 (2d Cir.1991) (underwriter arranged for a “short sale” of stock to depress its price while concealing his involvement in the deal); Zweig v. Hearst Corp., 594 F.2d 1261 (9th Cir.1979) (newspaper columnist purchased stock in a company about which he wrote a favorable article without disclosing his interest); United States v. Cannistraro, 800 F.Supp. 30 (D.N.J.1992) (defendants disseminated statements to the investing public concerning the merits of certain securities without disclosing their interest); United States v. Eisenberg, 773 F.Supp. 662 (D.N.J.1991) (same); SEC v. Blavin, 557 F.Supp. 1304 (E.D.Mich.1983), affd, 760 F.2d 706 (6th Cir. 1985) (defendant purchased large amounts of securities, authored and disseminated a newsletter touting these same securities without disclosing his interest). See Plaintiffs’ Memorandum in Opposition to Fidelity Defendant’s Motion to Dismiss, at 34-39. This case is the reverse of the typical scalping case in the sense that Vinik’s alleged purpose was not to conceal an interest in Micron, but rather to foster a belief that he had such an interest when in fact he did not. The analogy plaintiffs draw to the classical model of scalping is" }, { "docid": "3727759", "title": "", "text": "is questionable in light of Chiarella. 773 F.Supp. at 722. It relied, however, on the fact that Zweig “was premised in part on the [court’s] conclusion that the columnist made affirmative misrepresentations which were rendered misleading by virtue of omissions of material facts.” Id. at 722 (citing Zweig, 594 F.2d at 1271). The Defendants also disapprove of the reliance in Eisenberg on SEC v. Blavin, 557 F.Supp. 1304 (E.D.Mich.1983), aff'd, 760 F.2d 706 (6th Cir.1985). The Defendants argue Blavin does not support a finding of a distinction between insider trading cases and other cases where the liability is premised on the misleading nature of statements. Securities Fraud Moving Brief at 13. The district court’s holding in Blavin is set forth in Eisenberg. 773 F.Supp. at 722-23. On appeal, the Circuit affirmed the trial court’s finding that Blavin was liable under Section 10(b) and the Investment Advisors Act of 1940, 15 U.S.C. § 80b-6. Blavin, 760 F.2d at 710-12. The Circuit focused on the materiality of the misstatements contained in the newsletter regarding Blavin’s holdings in the securities he recommended. Id. at 711. The newsletter included a disclaimer that the investment advisor may trade in the recommended securities for his own account; it did not state that Blavin had invested in ten to twenty-five percent of the publicly available stock of the companies he recommended. Id. Although Blavin did not contest that the disclaimer was misleading he argued that a reasonable investor would not consider the misstatements material. Id. (citing TSC Indus., 426 U.S. at 449, 96 S.Ct. at 2132). The Circuit affirmed the trial court’s grant of summary judgment and held the disclaimer was a material misstatement. Id. It stated: “The effect of such large holdings on Blavin’s objectivity in making investment recommendations would be particularly important to his clients.” Id. (citing Zweig, 594 F.2d at 1266). As stated in Eisenberg, the reliance on Blavin was based on the fact that the court “analyzed the legality of the defendant’s conduct by viewing the case as one in which the defendant made a statement rendered misleading due to an omission of" }, { "docid": "22084983", "title": "", "text": "Without alluding to the SEC enforcement participant cases, the court rejected the Hill York test not because of its breadth but because it “fails to . . . focus the trier of fact’s attention on those policies . . . the Act was designed to implement.” Id. at 886. Accordingly, the court propounded its own test which focused on whether the defendant was uniquely positioned to ask relevant questions, acquire material information, or disclose his findings. Id. . Murphy’s acts, in fact, are quite similar to those of the defendants in Hill York and in Wasson. See Wasson v. SEC, 558 F.2d 879, 887 (8th Cir. 1977); Hill York Corp. v. American International Franchises, Inc., supra, 448 F.2d at 693. . At oral argument, counsel for Murphy also argued that proof of reliance was essential to 10b-5 liability and that the SEC had not proved reliance at trial. Reliance, however, is not a necessary element in actions for securities fraud when the fraudulent act charged involves an omission. Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972) (“Under the circumstances of this case, involving primarily a failure to disclose, positive proof of reliance is not a prerequisite to recovery. All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of this decision.”); Zweig v. Hearst Corp., 594 F.2d 1261, 1271 (9th Cir. 1979); Rifkin v. Crow, 574 F.2d 256, 263 (5th Cir. 1978). This conclusion is not impaired by the Supreme Court’s decision in Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980). See generally, H. Pitt, Chiarella Court: Limits on Novel 10b-5 Actions, Legal Times of Washington (March 31, 1980). While it seems that the majority opinion interprets Affiliated Ute Citizens quite narrowly, 445 U.S. at 250-251, 100 S.Ct. at 1125-26 (Blackmun, J., dissenting), the portion of Affiliated Ute Citizens that it restricts is that which had been thought to permit imposition of liability for omissions absent a fiduciary" }, { "docid": "22879037", "title": "", "text": "698 (1978). . The “flexible duty” test required courts to consider the following factors: (1) the relationship of defendant to plaintiff; (2) defendant's access to the information as compared to that of plaintiff; (3) defendant’s benefit derived from the relationship; (4) defendant’s awareness of whether plaintiff was relying on their relationship in making his or her investment decisions; and (5) defendant’s activity in initiating the transaction in question. Zweig v. Hearst Corp., 594 F.2d 1261, 1268 (9th Cir.1979) (paraphrasing White v. Abrams, 495 F.2d 724, 735-36 (9th Cir.1974)). . As Judge Ferguson pointed out in his concurring opinion in Spectrum, the Supreme Court listed the White decision “as an example of the negligence standard it was repudiating.” Spectrum, 608 F.2d at 383. . See, e.g., Kidwell ex rel. Penfold v. Meikle, 597 F.2d 1273, 1294 (9th Cir.1979); Zweig, 594 F.2d at 1268 n. 13; Crocker-Citizens Nat’l Bank v. Control Metals Corp., 566 F.2d 631, 636 n. 2 (9th Cir.1977). . The parties dispute whether Titan’s failure to disclose Wilkowski’s forgery conviction is a material fact. The district court held that the omission was not material. We find it arguable, however, that a reasonable investor would consider this information important to her decision to do business with a registered representative. See SEC v. Rogers, 790 F.2d 1450, 1458 (9th Cir.1986) (Information is material “if ‘there is a substantial likelihood that a reasonable investor would consider the information important in making an investment decision.’ ”) (quoting Caravan Mobile Home Sales, Inc. v. Lehman Bros. Kuhn Loeb, Inc., 769 F.2d 561, 565 (9th Cir.1985)). Therefore, we will assume, without deciding, that a jury could reasonably find the omission to be material, and we will go on to decide whether Titan acted with scienter. . Wilkowski’s letter said in relevant part: In the proceedings there was a plea bargaining situation which reduced my situation to a count of forgery to which I plead [sic] guilty. After negotiating the situation, and a presen-tencing report had been entered, I was placed upon probation, provided I made restitution of $16,843.49. At the time restitution was completed, the" }, { "docid": "23256980", "title": "", "text": "supra. . Allegations of an “interested” majority may, however, excuse a derivative plaintiffs failure to make the preliminary “demand” on the board of directors required by Fed.R.Civ.P. 23.-1. See Cramer v. GTE Corp., 582 F.2d 259, 276-77 (3d Cir. 1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1048, 59 L.Ed.2d 90 (1979); note 5 supra. . See Estes, Corporate Governance in the Courts, 58 Harv.Bus.Rev. 50, 52-60 (July-August 1980). . An omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.... Put another way, there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available. TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976). See generally Zweig v. Hearst Corp., 594 F.2d 1261, 1271-72 (9th Cir. 1979) (Ely, J., dissenting) (role of causation and materiality in' rule 10b-5 context). . See Carney, Fundamental Corporate Changes, Minority Shareholders, and Business Purposes, American Bar Foundation Research Journal 69 (Winter 1980). . The cases reject § 14(a) liability for this type of nondisclosure on both “causation” and “materiality” grounds, but we believe the “causal nexus” rationale is, in this situation, the least confusing approach. Compare, e. g., Maldonado v. Flynn, 597 F.2d at 796 (“The prevailing definition of a ‘material fact’ under Rule 14a-9 presupposes that the rule applies only when shareholders are asked to vote.... Since Zapata’s management did not ask shareholders to approve the modification of the stock option plan, § 14(a) is inapplicable.”) and Bertoglio v. Texas International Co., 488 F.Supp. 630, 650 (D.Del.1980) (“[A] broad view of materiality [under § 14(a)] in the context of election of directors would render meaningless the requirement that the misrepresented or omitted fact relate to the purpose for which proxies were solicited.”), with Abbey v. Control Data Corp., 603 F.2d at 732 (“Several courts have refused to find a federal remedy under § 14(a) for secret, illegal corporate payments. They" }, { "docid": "22375676", "title": "", "text": "fund from mixed-blood Ute Indians without disclosing that there was a secondary market for shares at higher prices among non-Indians); SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963) (investment adviser who purchased stock for his own account just before publishing a recommendation that his clients buy the stock); see also Zweig v. Hearst Corp., 594 F.2d 1261 (9th Cir.1979) (financial columnist); Lewelling v. First California Co., 564 F.2d 1277 (9th Cir.1977); Frigitemp Corp. v. Financial Dynamics Fund, Inc., 524 F.2d 275 (2d Cir.1975); Flynn v. Bass Brothers Enterprises, 456 F.Supp. 484 (E.D.Pa.1978). Moss sought to include the defendants in this category of nontraditional “insiders” and argued that they necessarily violated section 10(b) and rule 10b-5 by purchasing Deseret stock without publicly disclosing their knowledge of the impending tender offer. After finding that none of the defendants occupied a position of “trust” with respect to Moss, the district court held that none of the defendants owed him such a “duty of disclosure.” In light of the Supreme Court’s decisions in Chiarella v. United States, 445 U.S. 222,100 S.Ct. 1108, 63 L.Ed.2d 348 (1980), and Dirks v. SEC, - U.S. -, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983), which recently articulated the standard for analyzing violations of section 10(b) and rule 10b-5, we agree with the district court’s dismissal of plaintiff’s federal securities law claim. B. Chiarella v. United States In Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980), an employee of a New York financial printer deduced the identity of corporate takeover targets from the confidential offering documents prepared by his firm. Without disclosing his knowledge of the acquiring company’s plans, Chiarella purchased stock in the target companies and sold it at'a substantial profit immediately after public announcement of the takeovers. Id. at 224, 100 S.Ct. at 1112. He was indicted and convicted of violating section 10(b) of the 1934 Act and rule 10b-5. A divided Court of Appeals affirmed the conviction. United States v. Chiarella, 588 F.2d 1358 (2d Cir. 1978) (Meskill, J., dissenting). The" }, { "docid": "13717974", "title": "", "text": "duty to confer upon outside investors the benefit of the insider’s superi- or financial or other expert analysis. Texas Gulf Sulphur, 401 F.2d at 848. Because Simkins’ decision to sell his Fibreboard holdings was based on his analysis of the market, and not on insider corporate information, he cannot be held liable for any failure to disclose. B. Market Manipulation Feldman contends that Simkins’ conduct constituted market manipulation. He relies principally on Zweig v. Hearst Corp., 594 F.2d 1261 (9th Cir. 1979). Even assuming the continuing vitality of Zweig (see the district court’s opinion 492 F.Supp. at 845 questioning the vitality of Zweig in light of Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980)), we conclude defendant is not liable for market manipulation. In Zweig, plaintiffs sued a financial columnist, alleging that he had violated Section 10(b) by purchasing stock in a company at a discount, publishing a favorable column about the company, waiting for a resulting rise in the market, and then selling the stock at a profit. In reversing a judgment dismissing the complaint, the court held that the facts raised a triable issue whether the columnist, by trading in securities of companies on which he reported and failing to disclose that fact in his column, intended to manipulate the market for his own personal gain by falsely creating an aura of unbiased advice. Zweig may be distilled thusly: Where a financial adviser gives advice with regard to a stock he has or intends to purchase or sell, he has a conflict of interest. Where such a conflict is not apparent to other investors, he is under a duty to disclose the conflict. Simkins’ statements cannot be fairly characterized as advice in the same sense as those of the defendant in Zweig. Moreover, Simkins’ holdings of stock was public knowledge as was his desire to liquidate them. Therefore, any conflict of interest which Simkins’ statements may have raised was apparent to investors. The district court correctly distinguished Zweig from the instant case. Simkins took no affirmative action to influence or affect the" }, { "docid": "22879036", "title": "", "text": "1192, 1250 (E.D.Va.1988) (citing cases), aff'd in part, rev’d in part on other grounds sub nom. Foremost Guar. Corp. v. Meritor Sav. Bank, 910 F.2d 118 (4th Cir.1990). . Although the SEC urges us to adopt a standard of recklessness based on the common law of fraud’s standard of \"conscious indifference,” we prefer the Sunstrand standard of recklessness, in part because it allows us to bring greater uniformity to the law of the various circuits. . See, e.g., Hackbart v. Holmes, 675 F.2d 1114, 1118 (10th Cir.1982); SEC v. Carriba Air, Inc., 681 F.2d 1318, 1324 (11th Cir.1982); Broad v. Rockwell Int'l Corp., 642 F.2d 929, 961-62 (5th Cir.), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 380 (1981); McLean v. Alexander, 599 F.2d 1190, 1197-98 (3d Cir.1979); Mansbach v. Prescott, Ball & Turben, 598 F.2d 1017, 1025 (6th Cir.1979); Cook v. Avien, Inc., 573 F.2d 685, 692 (1st Cir.1978); Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 46-47 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978). . The “flexible duty” test required courts to consider the following factors: (1) the relationship of defendant to plaintiff; (2) defendant's access to the information as compared to that of plaintiff; (3) defendant’s benefit derived from the relationship; (4) defendant’s awareness of whether plaintiff was relying on their relationship in making his or her investment decisions; and (5) defendant’s activity in initiating the transaction in question. Zweig v. Hearst Corp., 594 F.2d 1261, 1268 (9th Cir.1979) (paraphrasing White v. Abrams, 495 F.2d 724, 735-36 (9th Cir.1974)). . As Judge Ferguson pointed out in his concurring opinion in Spectrum, the Supreme Court listed the White decision “as an example of the negligence standard it was repudiating.” Spectrum, 608 F.2d at 383. . See, e.g., Kidwell ex rel. Penfold v. Meikle, 597 F.2d 1273, 1294 (9th Cir.1979); Zweig, 594 F.2d at 1268 n. 13; Crocker-Citizens Nat’l Bank v. Control Metals Corp., 566 F.2d 631, 636 n. 2 (9th Cir.1977). . The parties dispute whether Titan’s failure to disclose Wilkowski’s forgery conviction is a material fact." } ]

[ { "docid": "22037514", "title": "", "text": "raise and support armies, to provide and maintain a navy, and to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions. The President is the commander-in-chief of the army and navy, and of the militia of the several States, when called into the service of the United Státes, and it is made his duty to take care that the laws are faithfully executed. Congress is authorized to make all laws necessary and proper to carry into effect the granted powers. The measures to be taken in carrying on war and to suppress insurrection are not defined. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution. In the latter case the power is not limited to victories in the field and tbe dispersion of the insurgent forces. It carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils •which have arisen from its rise and progress. This act falls within the latter category. The power to pass it is necessarily implied from the powers to make war and suppress insurrections. It is a beneficent exercise of this authority. It only applies coercively the principle of law of nations, which ought to work the same results in the courts of all the rebellious States without the intervention of this enactment. It promotes justice and honesty, and has nothing penal or in the nature of confiscation in its character. It would he a strange result if those in rebellion, by protracting the conflict, could thufe rid themselves of their debts, and Congress, which had the power to wage war and suppress the insurrection, had no power to remedy such an evil, which is one of its consequences. What is clearly implied in a written instrument, is as effectual as what is expressed. The war power and the treaty-making power, each carries with it authority to acquire territory. Louisiana, Florida, and Alaska were acquired under the latter, and California under" } ]

[ { "docid": "80689", "title": "", "text": "States v. Macintosh, 283 U.S. 605, 624, 51 S.Ct. 570, 575, 75 L.Ed. 1302. All the reasoning of that decision and the many others sustaining the war power of Congress apply with equal force to the price control features of the Act in question. See Helena Rubinstein, Inc., v. Charline’s Cut Rate, Inc., 132 N.J.Eq. 254, 28 A.2d 113. In the exercise of its very broad power to adopt measures which it deems essential to the war success Congress has intervened in many diverse fields. The Supreme Court has upheld such interferences with property as the taking over and operation of railroads (Northern Pacific Railway Co. v. North Dakota ex rel. Langer, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897), and the taking over and operation of telephone and telegraph lines (Dakota Central Telephone Co. v. South Dakota ex rel. Payne, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623), and has approved the invasion of the freedom of the individual by compulsory military service both at home and abroad. (Arver et al., v. United States, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.l918B, 856). The power to enact the Emergency Price Control Act of 1942 cannot be seriously questioned in the light of these decisions. Indeed, it would be a strange situation to grant that Congress has the power to take men from their homes and to send them to war, and to deny that Congress has the right to prevent profiteering by those supplying food to their dependents. Nor is the exercise of this broad power weakened constitutionally by the delegation of its power under proper standards to those charged with the administration of the Act. Congress has set forth the objectives in Section 1(a), 50 U.S.C.A. Appendix § 901(a). To attain these objectives maximum price regulations were authorized to be promulgated, the procedure for which is set out in Section 2(a), 50 U.S.C.A. Appendix § 902(a). There is no loose and general delegation of authority here as in Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241," }, { "docid": "11206864", "title": "", "text": "v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470); to ration and allocate the distribution of every commodity important to the war effort (Steuart & Bro. v. Bowles, 322 U.S. 398, 64 S.Ct. 1097, 88 L.Ed. 1350) ; to restrict the personal freedom of American citizens by curfew orders and the designation of areas of exclusion (Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774); and, finally, to demand of every citizen that he serve in the armed forces of the nation (Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305; Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas. 856). “The war power of the national government is ‘the power to wage war successfully.’ See Charles Evans Hughes, War Powers Under the Constitution, 42 A.B.A. Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war.” Hirabayashi v. United States, 1943, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774. During 1942, appellants manufactured and sold mechanical fittings and parts for airplanes, and the full capacity of appellants’ plant was directed to the production of materials which had a war end use. Appellants’ total sales for 1942 were approximately $405,000 and the profit on these sales, after payment of all expense except salaries to the partners, taxes and investments in the business, was $211,000, or a ratio of profit to sales of 52%. The Under Secretary reduced the profit to $100,000, making a ratio of profit to adjusted sales (total sales reduced by $110,000) of 33%. Certainly it was a matter of congressional concern in a total war, global in extent, with the" }, { "docid": "22604937", "title": "", "text": "order in question, or have authorized others to make it. For the President’s action has the support of the Act of Congress, and we are immediately concerned with the question whether it.is within- the constitutional power of the national government, through the joint action of Congress and the Executive, to impose this restriction as an emergency war measure. .The ex*' ercise -of that power here involves no question of martial law or trial by military tribunal. Cf. Ex parte Milligan, 4 Wall. 2:; Ex parte Quirin,-. supra. Appellant-. has. been tried and convicted in the civil courts and has been subjected to penalties prescribed by Congress for the acts committed. The war power of the national government is “the power to wage war successfully.” See Charles Evans Hughes, War Powers Under the Constitution, 42 A. B. A. Rep. 232, 238. It extends to every matter and adtivity so related to war as substantially to affect its conduct and progress.' The power is not restricted to the winning of victories'in the field and the repulse of enemy fofcés. It embraces every phase of the national defense, including the protection of war materials and the members of thé armed forces from injury and from the dangers which attend the rise, prosecution and progress of war. Prize Cases, supra; Miller v. United States, 11 Wall. 268, 303-14; Stewart v. Kahn, 11 Wall. 493, 506-07; Selective Draft Law Cases, 245 U. S. 366; McKinley v. United States, 249 U. S. 397; United States v. Macintosh, 283 U. S. 605, 622-23. Since the Constitution commits to the Executive and to Congress the exercise of' the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. Ex parte Quirin, supra, 28-29; cf. Prize Cases, supra, 670; Martin v. Mott, 12 Wheat. 19, 29. Where, as they did here, the conditions” call for the exercise of judgment and discretion and for" }, { "docid": "14051410", "title": "", "text": "morale of the people and the spirit of the army may not be broken by seditious utterances; freedom of the press curtailed to preserve our military plans and movements from the knowledge of the enemy; deserters and spies put to death without indictment or trial by jury; ships and supplies requisitioned; property of alien enemies, theretofore under the protection of the Constitution, seized without process and converted to the public use without compensation and without due process of law in the ordinary, sense of that term; prices.of food and other necessities of life fixed or regulated; railways taken over and operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.” United States v. Macintosh, 1931, 283 U.S. 605, 622, 51 S.Ct. 570, 574, 75 L.Ed. 1302. Judge Nordbye in his opinion in a recent case has pointed out some instances of exercise of the war power of the Congress upheld by the courts in the past. “Congress drafts soldiers to fight the Nation’s battles, and it can also, with constitutional limitations, regulate and draft the resources of the Nation. The Supreme Court has already spoken on this question. In Northern Pacific Railroad Company v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897, it has upheld the power to take over and operate the railroads; in Dakota Central Telephone Company v. South Dakota, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623, to take over and operate telegraph and telephone systems; in Moore & Tierney, Inc., v. Roxford Knitting Company, 2 Cir., 265 F. 177, 11 A.L.R. 1415, certiorari denied 253 U.S. 498, 40 S.Ct. 588, 64 L.Ed. 1032, to place compulsory orders for materials required for national defense; in Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856, to draft manpower for service in the armed forces; in Jacob Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260, to prohibit the manufacture or sale of alcoholic beverages;" }, { "docid": "22609865", "title": "", "text": "245 U. S. 366; see Falbo v. United States, 320 U. S. 549. But, in any event, the war power clearly supports the objective of removing a corrosive influence upon the morale of a nation at war. As the Court said in Hirabayashi v. United States, 320 U. S. 81, 93, the war power “extends to every matter, and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war.” See Lichter v. United States, 334 U. S. 742. This legislation is thus quite different from the statute held invalid in Trop v. Dulles, supra. In that case there were not five members of the Court who were able to find the “requisite rational relation” between the war power of Congress and § 401 (g) of the 1940 Act imposing denationalization upon wartime deserters from the armed forces. As the concurring opinion pointed out, the statute was “not limited in its effects to those who desert in a foreign country or who flee to another land.” 356 U. S., at 107. Indeed, “The Solicitor General acknowledged that forfeiture of citizenship would have occurred if the entire incident had transpired in this country.” 356 U. S., at 92. It was emphasized that conduct far short of disloyalty could technically constitute the military offense of desertion, 356 U. S., at 112, 113, and that the harshness of denationalization for conduct so potentially equivocal was “an important consideration where the asserted power to expatriate has only a slight or tenuous relation to the granted power.” 356 U. S., at 110. The legislation now before us, on the other hand, is by its terms completely inapplicable to those guilty of draft evasion who have remained in the United States; it is exclusively aimed at those, whether or" }, { "docid": "23528250", "title": "", "text": "lands or interests in lands acquired under the provisions of subsection (a) hereof or on other lands of the United States which may be available. * * * Provided further, That where the Administrator shall consider that there is no reasonable prospect of disposing of such housing to meet a need extending beyond the emergency he shall construct temporary units * * Section 2 of the Act, 42 U.S.C.A. § 1522, states that “the term ‘persons engaged in national-defense activities’ ” shall include “(1) enlisted men in the naval or military services of the United States; (2) employees of the United States in the Navy and War Departments assigned to duty at naval or military reservations, posts, or bases; (3) workers engaged or to be engaged in industries connected with and essential to the national defense; (4) officers of the Army and Marine Corps not above the grade of captain, and officers of the Navy and Coast Guard, not above the grade of lieutenant, senior grade, assigned to duty at naval or military reservations, posts, or bases, or to duty at defense industries : * * * ” By the Lanham Act, Congress has decreed that housing for persons engaged in national-defense activities, as defined in Section 2, is essential to the national defense. Such legislation is clearly within the war powers granted to Congress by the Constitution. See provisions of Article 1, Section 8, clauses 11 to 16 inclusive. In Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774, the Supreme Court by Mr. Chief Justice Stone stated, “The war power of the national government is ‘the power to wage war successfully’. See Charles Evans Hughes, War Powers Under the Constitution, 42 A. B.A.Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the" }, { "docid": "11206863", "title": "", "text": "It was made applicable to existing contracts and subcontracts upon which it is an exercise of that same power to wage war which permits the government to control the price of every commodity bought and sold within the national boundaries (Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834); to fix the amount or rent to be charged for every room, home, or building and this even though to an individual landlord there may be less than a fair return (Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892); to construct extensive systems of public works (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688); to operate railroads (Northern Pacific R. Co. v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897) ; to prohibit the sale of liquor (Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194) ; to restrict freedom of speech in a manner that would be unwarranted in time of peace (Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470); to ration and allocate the distribution of every commodity important to the war effort (Steuart & Bro. v. Bowles, 322 U.S. 398, 64 S.Ct. 1097, 88 L.Ed. 1350) ; to restrict the personal freedom of American citizens by curfew orders and the designation of areas of exclusion (Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774); and, finally, to demand of every citizen that he serve in the armed forces of the nation (Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305; Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas. 856). “The war power of the national government is ‘the power to wage war successfully.’ See Charles Evans Hughes, War Powers Under the Constitution, 42 A.B.A. Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of" }, { "docid": "176771", "title": "", "text": "power may be lawfully exercised. Every case must depend upon its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified.” Again, in United States v. Russell, 80 U.S. 623, 13 Wall. 623, 629, 20 L.Ed. 474, where the seizure of privately owned cargo vessels during the civil war was examined, Mr. Justice Clifford said: “Such a taking of private property by the government, when the emergency of the public service in time of war or impending public danger is too urgent to admit of delay, is everywhere regarded as justified, if the necessity for the use of the property is imperative and immediate, and the danger, as heretofore described, is impending, and it is equally clear that the taking of such property under such circumstances creates an obligation on the part of the government to reimburse the owner to the full value of the service. Private rights, under such extreme and imperious circumstances, must give way for the time to the public good, but the government must make full restitution for the sacrifice.” Instructive upon the power of the parent government in seasons of war over the property of private citizens are Legal Tender Cases, 79 U.S. 457, 12 Wall. 457, 20 L.Ed. 287; Stewart v. Kahn, 78 U.S. 493, 11 Wall. 493, 20 L.Ed. 176; McKinley v. United States, 249 U.S. 397, 39 S.Ct. 324, 63 L.Ed. 668, and especially the discussion of Mr. Justice Sutherland in United States v. MacIntosh, 283 U.S. 605, 622, 623, 51 S.Ct. 570, 75 L.Ed. 1302 and the historical analysis by Mr. Chief Justice White in Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann. Cas.l918B, 856. See also United States v. Wright, D.C.Del., 48 F.Supp. 687; Brady v. Atlantic Works, 3 Fed.Cas. 1190, No. 1,794; and Holmes v. Sheridan, 12 Fed.Cas. 422, No.6,644. The suggestion has been made (supra) that the government’s power to requisition private property for public use in an emergency needs no express constitutional grant for its" }, { "docid": "8887222", "title": "", "text": "any special legislative authority.” The Prize Cases, 67 U.S. (2 Black) at 668. In exercising the power to wage war, the President finds authorization in the Constitution itself to “direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war.” Ex parte Quirin, 317 U.S. at 28, 63 S.Ct. 1. Within these functions are “important incidentes] to the conduct of war” such as “the adoption of measures by the military command ... to repel and defeat the enemy....” Id. They also include “the power to seize and subject to disciplinary measures those enemies who in their attempt to ' thwart or impede our military effort have violated the law of war.” Id. at 28-29, 63 S.Ct. 1; see also Hamdi v. Rumsfeld, — U.S. —, —, 124 S.Ct. 2633, 2640, 159 L.Ed.2d 578 (2004) (“The capture and detention of lawful combatants and the capture, detention and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incidents] of war.’ ” (citing Ex parte Quirin, 317 U.S. at 28, 63 S.Ct. 2)). In our view, the President’s power to wage war must also necessarily include the power to make extraterritorial enemy property designations because such designations are also an important incident to the conduct of war. As much is borne out of the history of this nation’s many declared and undeclared wars, part of which is documented in the cases where courts have applied the enemy property doctrine. The cases teach that the purpose of such designations is almost always to “repel and defeat the enemy” by diminishing the sum of material resources it has at its disposal to prosecute hostilities against the United States and its citizens. Whether the private property destroyed as enemy property is a tank firing rounds at American forces, a bridge the enemy finds necessary to advance to the front, or a commodity, such as oil, imperiled by advancing forces, the aim is the same — to “wage war successfully.” See Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 87 L.Ed." }, { "docid": "23528251", "title": "", "text": "or bases, or to duty at defense industries : * * * ” By the Lanham Act, Congress has decreed that housing for persons engaged in national-defense activities, as defined in Section 2, is essential to the national defense. Such legislation is clearly within the war powers granted to Congress by the Constitution. See provisions of Article 1, Section 8, clauses 11 to 16 inclusive. In Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774, the Supreme Court by Mr. Chief Justice Stone stated, “The war power of the national government is ‘the power to wage war successfully’. See Charles Evans Hughes, War Powers Under the Constitution, 42 A. B.A.Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war.” While the opinion of the Supreme Court in the cited case dealt with the constitutionality of a curfew order imposed by the Military Commander of the Western Defense Command, the principles enunciated are interpretative of the powers given to Congress as well as to the Executive to wage war and to act in the national defense. Nor can it be considered necessary that the United States must be at war in order that Congress and the Executive possess the constitutional sanction to prepare for it. Such an interpretation would be so unrealistic as not to warrant serious consideration. Cf. United States v. 243.22 Acres of Land, D.C., 43 F.Supp. 561, 567, 568, affirmed 2 Cir., 129 F.2d 678. Amici in support of the defendants assert that the definition contained in Section 2 (3) of the Act, quoted above is so broad as to encompass within its scope “. . . almost all of the inhabitants of the country," }, { "docid": "22609864", "title": "", "text": "the Constitution was to “provide for the common defence.” To that end, the Framers expressly conferred upon Congress a compendium of powers which have come to be called the “war power.” Responsive to the scope and magnitude of ultimate national need, the war power is “the power to wage war successfully.” See Charles Evans Hughes, War Powers under the Constitution, 42 A. B. A. Rep. 232, 238. It seems to me evident that Congress was drawing upon this power when it enacted the legislation before us. To be sure, the underlying purpose of this legislation can hardly be refined to the point of isolating one single, precise objective. The desire to end a potential drain upon this country’s military manpower was clearly present in the minds of the legislators and would itself have constituted a purpose having sufficient rational nexus to the exercise of the war power. Indeed, there is no more fundamental aspect of this broad power than the building and maintaining of armed forces sufficient for the common defense. Selective Draft Law Cases, 245 U. S. 366; see Falbo v. United States, 320 U. S. 549. But, in any event, the war power clearly supports the objective of removing a corrosive influence upon the morale of a nation at war. As the Court said in Hirabayashi v. United States, 320 U. S. 81, 93, the war power “extends to every matter, and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war.” See Lichter v. United States, 334 U. S. 742. This legislation is thus quite different from the statute held invalid in Trop v. Dulles, supra. In that case there were not five members of the Court who were able to find the “requisite rational relation” between the war" }, { "docid": "13389707", "title": "", "text": "operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.” United States v. Macintosh, 283 U.S. 605, 622, 51 S. Ct. 570, 574, 75 L.Ed. 1302 (1931). There does exist, “ * * * a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government, — especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S.Ct. 358, 362, 49 L.Ed. 643 (1905). While the right to live and work is recognized, an individual “ * * * may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense.” 197 U.S. at 29, 25 S.Ct. at 362. Although Congress may impose many limitations upon individual liberties in the just exercise of its “war power”, this power is not without limitation. United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967). However, these limitations do not include a prohibition upon the right of Congress to create military forces through a conscriptive system. United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), rehearing denied 393 U.S. 900, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968); United States v. Robel, supra; Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948); Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1," }, { "docid": "22604936", "title": "", "text": "and whether the order itself was an ap'r propriate means of carrying out the Executive Order for the “protection against espionage and against sabotage” to national defense materials, premises and utilities. For reasons presently to be stated, we conclude that.it was within the constitutional power of Congress and-the executive arm of the Government to prescribe this curfew order for the period under consideration and that its promulgation by the military commander involved no unlawful delegation of .legislative power. Executive Order No. 9066, promulgated in time of war for the declared purpose of prosecuting the war by protecting national; defense resources from sabotage and espionage, and the Act of March 21,1942, ratifying and confirming the Executive Order, were each an exercise of the power to wage war conferred on the Congress and on the President, as Commander in Chief of the armed forces, by Articles I and II of-the Constitution. See Ex -parte Quirin, 317 U. S. 1> 25-26. We have no occasion to. consider whether the President, acting alone, could lawfully have made the curfew order in question, or have authorized others to make it. For the President’s action has the support of the Act of Congress, and we are immediately concerned with the question whether it.is within- the constitutional power of the national government, through the joint action of Congress and the Executive, to impose this restriction as an emergency war measure. .The ex*' ercise -of that power here involves no question of martial law or trial by military tribunal. Cf. Ex parte Milligan, 4 Wall. 2:; Ex parte Quirin,-. supra. Appellant-. has. been tried and convicted in the civil courts and has been subjected to penalties prescribed by Congress for the acts committed. The war power of the national government is “the power to wage war successfully.” See Charles Evans Hughes, War Powers Under the Constitution, 42 A. B. A. Rep. 232, 238. It extends to every matter and adtivity so related to war as substantially to affect its conduct and progress.' The power is not restricted to the winning of victories'in the field and the repulse of" }, { "docid": "1831769", "title": "", "text": "those who were willing to fight could not have been the intention of the framers of the Constitution. A nation engaged in war is fighting for its existence. The framers of the Constitution intended that Congress should have the power, if necessary, to call on every citizen to come to its aid. In these days of total war, war means just what that name implies, a war of all, as a unit, for the preservation of our Nation, our ideals and our freedoms. As said by the Supreme Court in the Selective Draft Law Cases, supra, 38 S.Ct. at page 161: “ * * * a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power.” It is equally evident that the need for raising an army must be a question to be left to the final decision of Congress. It would be hard to conceive of our being engaged in any war to which there would not be some objectors, conscientious or otherwise; where some of our citizens would think the war not justified, who would think the declaration of war and the waging of war unnecessary. If the question of the necessity of war or the preparation for war were to be left to the answer of the courts on the petition of individuals, instead of to Congress, the war might well be over and our guaranteed freedom something only to be remembered before Congress could act and raise an army. Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A. 1918C, 361, Ann.Cas.1918B, 856; United States v. Mroz, 7 Cir., 136 F.2d 221; Heflin v. Sanford, 5 Cir., 142 F.2d 798, 800; Roodenko v. United States, 10 Cir., 147 F.2d 752, certiorari denied, 324 U.S. 860, 65 S.Ct. 867, 89 L.Ed. 1418; United States v. Lamothe, 2 Cir., 152 F.2d 340; Warren v. United States, 10 Cir., 177 F.2d 596; Gara v. United States, 6 Cir., 178 F.2d 38; see also United States v." }, { "docid": "22604938", "title": "", "text": "enemy fofcés. It embraces every phase of the national defense, including the protection of war materials and the members of thé armed forces from injury and from the dangers which attend the rise, prosecution and progress of war. Prize Cases, supra; Miller v. United States, 11 Wall. 268, 303-14; Stewart v. Kahn, 11 Wall. 493, 506-07; Selective Draft Law Cases, 245 U. S. 366; McKinley v. United States, 249 U. S. 397; United States v. Macintosh, 283 U. S. 605, 622-23. Since the Constitution commits to the Executive and to Congress the exercise of' the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. Ex parte Quirin, supra, 28-29; cf. Prize Cases, supra, 670; Martin v. Mott, 12 Wheat. 19, 29. Where, as they did here, the conditions” call for the exercise of judgment and discretion and for the choice of means by those branches of the Government' on which the Constitution has ’ placed the responsibility 6f war-making, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs. The actions taken must be appraised in the light of the conditions- with which the President and Congress were confronted \"in the early months of 1942, many of which, since disclosed, were then peculiarly within the knowledge of the military authorities. On December 7, 1941, the Japanese air forces had attacked the United States Naval Base at Pearl Harbor without warning, at the very hour when Japanese diplomatic representatives were conducting negotiations with our State Department ostensibly for the peaceful settlement of differences between the two countries. Simultaneously or nearly so, the Japanese attacked Malaysia, Hong Kong, the Philippines, and Wake and Midway Islands. On the following day their army invaded Thailand. Shortly afterwards they sank two British battleships. On December 13th, Guam was taken. On December 24th and 25th they captured" }, { "docid": "22557960", "title": "", "text": "of a flat percentage limitation of profits), and it also endowed the procuring agencies with power to determine excessive profits when no bilateral agreement could be reached with the contractor. I believe that this addition by the Congress of the power of unilateral action was a wise and a necessary one, and that without it renegotiation would not have accomplished anything like the results that have been achieved. “12. . . . Some conception of the vast scope of the procurement activity of the armed services after the attack on Pearl Harbor can be gained from the fact that the total expenditures of the War and Navy Departments for the one fiscal year ending June 30, 1942 ($22,905,000,000) considerably exceeded the total military and naval expenditures of the Government from 1789 through the end of World War I.\" Affidavit of Robert P. Patterson, Under Secretary of War, sworn to August 3,1945. See note 1, supra. McKinley v. United States, 249 U. S. 397 (regulations of local activities near federal military stations); Northern Pacific R. Co. v. North Dakota, 250 U. S. 135 (seizure and operation of railroads) ; Hamilton v. Kentucky Distilleries and W. Co., 251 U. S. 146 (local liquor traffic); Central Union Trust Co. v. Garvan, 254 U. S. 554 (seizure of enemy property); Hirabayashi v. United States, 320 U. S. 81 (curfew regulations); Yakus v. United States, 321 U. S. 414 (Emergency Price Control Act); Bowles v. Willingham, 321 U. S. 503 (rent control); and Korematsu v. United States, 323 U. S. 214 (exclusion of civilians from west coast military area). In Hirabayashi v. United States, supra, this Court said (p. 93): “The war power of the national government is ‘the power to wage war successfully.’ See Charles Evans Hughes, War Powers Under the Constitution, 42 A. B. A. Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. . . . Since the Constitution commits" }, { "docid": "8887221", "title": "", "text": "that he share it with the Congress and the federal courts. We think consideration of the decisional law touching on the nature and scope of the President’s war powers sheds important light on our present inquiry under Baker’s “demonstrable textual commitment” test. The Supreme Court has characterized the nature of the President’s war powers thusly: The Constitution ... invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offenses against the law of nations, including those which pertain to the conduct of war. Ex parte Quirin, 317 U.S. at 26, 63 S.Ct. 1 (emphasis added). And where circumstances are such that war is made on the Nation rather than declared by the Congress, the Court has long held that although he may “not initiate the war, [the President] is bound to accept the challenge without waiting for any special legislative authority.” The Prize Cases, 67 U.S. (2 Black) at 668. In exercising the power to wage war, the President finds authorization in the Constitution itself to “direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war.” Ex parte Quirin, 317 U.S. at 28, 63 S.Ct. 1. Within these functions are “important incidentes] to the conduct of war” such as “the adoption of measures by the military command ... to repel and defeat the enemy....” Id. They also include “the power to seize and subject to disciplinary measures those enemies who in their attempt to ' thwart or impede our military effort have violated the law of war.” Id. at 28-29, 63 S.Ct. 1; see also Hamdi v. Rumsfeld, — U.S. —, —, 124 S.Ct. 2633, 2640, 159 L.Ed.2d 578 (2004) (“The capture and detention of lawful combatants and the capture, detention and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incidents] of war.’ ” (citing Ex parte" }, { "docid": "22557961", "title": "", "text": "v. North Dakota, 250 U. S. 135 (seizure and operation of railroads) ; Hamilton v. Kentucky Distilleries and W. Co., 251 U. S. 146 (local liquor traffic); Central Union Trust Co. v. Garvan, 254 U. S. 554 (seizure of enemy property); Hirabayashi v. United States, 320 U. S. 81 (curfew regulations); Yakus v. United States, 321 U. S. 414 (Emergency Price Control Act); Bowles v. Willingham, 321 U. S. 503 (rent control); and Korematsu v. United States, 323 U. S. 214 (exclusion of civilians from west coast military area). In Hirabayashi v. United States, supra, this Court said (p. 93): “The war power of the national government is ‘the power to wage war successfully.’ See Charles Evans Hughes, War Powers Under the Constitution, 42 A. B. A. Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. . . . Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. . . . Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of war-making, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.” “20. At the beginning of the limited emergency in 1939, the only applicable statutory limits on profits from the sale of military or naval supplies were contained in the Vinson-Trammel Act of March 27, 1934, as amended (relating to naval vessels) and the Merchant Marine Act of 1936, as amended (relating to construction of merchant ships). The" }, { "docid": "176772", "title": "", "text": "the public good, but the government must make full restitution for the sacrifice.” Instructive upon the power of the parent government in seasons of war over the property of private citizens are Legal Tender Cases, 79 U.S. 457, 12 Wall. 457, 20 L.Ed. 287; Stewart v. Kahn, 78 U.S. 493, 11 Wall. 493, 20 L.Ed. 176; McKinley v. United States, 249 U.S. 397, 39 S.Ct. 324, 63 L.Ed. 668, and especially the discussion of Mr. Justice Sutherland in United States v. MacIntosh, 283 U.S. 605, 622, 623, 51 S.Ct. 570, 75 L.Ed. 1302 and the historical analysis by Mr. Chief Justice White in Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann. Cas.l918B, 856. See also United States v. Wright, D.C.Del., 48 F.Supp. 687; Brady v. Atlantic Works, 3 Fed.Cas. 1190, No. 1,794; and Holmes v. Sheridan, 12 Fed.Cas. 422, No.6,644. The suggestion has been made (supra) that the government’s power to requisition private property for public use in an emergency needs no express constitutional grant for its foundation, but springs from the very nature of government. That thought is expressed, in reference to the exercise of the normally less urgent power of Eminent Domain in United States v. City of Tiffin, C.C., 190 F. 279, 280, in which it is asserted that: “The Constitution does not operate to create this right, but only to limit its exercise to certain objects. The several states for their own administrative purposes within their own borders hold authority of the same generally broad and extraconstitutional nature. The principle of strict construction of either the nature or extent of this right applies to neither sovereignty for the reason that such right is a very part of the sovereignty itself, existing from the beginning.” See also United States v. .8677 Acre of Land in Richland County and City of Columbia, D.C.E.D.S.C., 42 F.Supp. 91, United States v. McFarland, 4 Cir., 15 F.2d 823. The foregoing reasoning finds support rather than opposition in the Fifth Amendment to the Constitution of the United States. What is there forbidden is not" }, { "docid": "14051411", "title": "", "text": "and it can also, with constitutional limitations, regulate and draft the resources of the Nation. The Supreme Court has already spoken on this question. In Northern Pacific Railroad Company v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897, it has upheld the power to take over and operate the railroads; in Dakota Central Telephone Company v. South Dakota, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623, to take over and operate telegraph and telephone systems; in Moore & Tierney, Inc., v. Roxford Knitting Company, 2 Cir., 265 F. 177, 11 A.L.R. 1415, certiorari denied 253 U.S. 498, 40 S.Ct. 588, 64 L.Ed. 1032, to place compulsory orders for materials required for national defense; in Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856, to draft manpower for service in the armed forces; in Jacob Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260, to prohibit the manufacture or sale of alcoholic beverages; in Highland v. Russell Car & Snow Plow Co., 279 U.S. 253, 49 S.Ct. 314, 73 L.Ed. 688, to regulate the prices of certain commodities; in Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165, to control rents.” Nordbye, J., in United States v. C. Thomas Stores, Inc., D.C.Minn., February 26, 1943, 49 F. Supp. 111, 113. Additional instances of exercise of the war powers sustained by the courts include the present Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq. See opinions of Judge Hincks in United States v. Friedman, D.C.Conn.March 25, 1943, 50 F.Supp. 584, and United States v. Sosnowitz & Lotstein, Inc., et al., D.C.Conn. March 25, 1943, 50 F.Supp. 586; and see United States v. Wright, D.C.Del.1943, 48 F.Supp. 687; Henderson v. Byran, D.C. Cal.1942, 46 F.Supp. 682; United States v. C. Thomas Stores, Inc., et al., supra, and the anti-prostitution statute of World War I, Act May 18, 1917, § 13, 40 Stat. 83, 50 U.S.C.A. § 226 note, McKinley v. United States," } ]

[ { "docid": "22776061", "title": "", "text": "and federal authority . . . .” Railroad Comm’n v. Pullman Co., 312 U. S. 496, 501. In the service of this doctrine, which this Court has applied in many different contexts, no principle has found more consistent or clear expression than that'the federal courts should not adjudicate the constitutionality of state enactments fairly open to; interpretation until the- state courts have been afforded a reasonable opportunity to pass upon them. See, e. g., Railroad Comm’n v. Pullman Co., supra; Chicago v. Fieldcrest Dairies, Inc., 316 U. S. 168; Spector Motor Service, Inc., v. McLaughlin, 323 U. S. 101; American Federation of Labor v. Watson, 327 U. S. 582; Shipman v. DuPre, 339 U. S. 321; Albertson v. Millard, 345 U. S. 242; Government & Civic Employees v. Windsor, 353 U. S. 364. This principle does not, of course, involve the. abdication of federal jurisdiction,, but only-the postponement of its áxercise; it serves the policy of comity inherent in the doctrine of abstention; and it spares the federal courts of unnecessary constitutional adjindication. See Chicago v. Fieldcrest Dairies, Inc., supra, at 172-173. The present case, in our view, is one which calls for the application of this principle, since we are-, unable to agree that the terms of these three statutes’ leave no reasonable room for á construction by the Virginia courts which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem. It certainly cannot be said that Chapter 35 does not require a construction by the state courts. As' appellants asserted here and in the court below, the Chapter might well be read as requiring a “stirring up” of litigation in the conventional common-law sense, in addition to the “unjustified” payment of litigation expenses. Were it to be so read, the statute might then not even apply to these appellees since the lower court found the evidence “uncontradicted that the initial steps which have led to the institution and prosecution of racial suits in Virginia with the assistance of the Association and the Fund have" } ]

[ { "docid": "7594566", "title": "", "text": "Askew v. Hargrave, 401 U.S. 476, 478, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Freda v. Lavine, 494 F.2d 107,110 (2 Cir. 1974);. Reid v. Board of Education of the City of New York, 453 F.2d 238, 241 (2 Cir. 1971); and the issue of state law is “uncertain” or “unclear,” see Kusper v. Pontikes, 414 U.S. 51, 55, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Lake Carriers’ Ass’n v. MacMullen, supra, 406 U.S. at 511, 92 S.Ct. 1749, quoting Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Reid v. Board of Education, supra, 453 F.2d at 242; H. Hart & H. Wechsler, The Federal Courts and the Federal System, 991-92 (P. Bator et al. eds. 1973). See McRedmond v. Wilson, 533 F.2d 757, 762 (2 Cir. 1976); C. Wright, Law of Federal Courts, § 52 (2d ed. 1970). In such a situation, the federal court properly may abstain from deciding the federal constitutional question, pending a definitive determination of the state law issue by a state tribunal. This course avoids unnecessary federal-state friction, and promotes the vital policy of judicial review that dictates against unnecessary or premature resolution of a federal constitutional question. See C. Wright, supra; Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Kusper v. Pontikes, supra, 414 U.S. at 54-55, 94 S.Ct. 303; Harman v. Forssenius, supra, 380 U.S. at 534, 85 S.Ct. 1177; Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944). See also Rolling Cloud, et al. v. Gill, et al., 412 F.Supp. 1085 (D.Conn., 1976). Here, these requirements are satisfied. There is a state statute susceptible of interpretation by a Connecticut court so as to render decision of the federal constitutional questions posed unnecessary. Connecticut General Statutes § 10-153a, “Right to join professional organizations,” states: “Members of the teaching profession shall have the" }, { "docid": "14428268", "title": "", "text": "declaratory and injunc-tive relief and has moved for the im-panelling of a three-judge district court pursuant to 28 U.S.C.A. §§ 2281, 2284. The threshold issue is whether the federal courts should accept jurisdiction now since the issues have never been presented to or passed upon by the state courts. In a series of cases beginning with Railroad Commission of Texas v. Pullman Co., 1941, 312 U:S. 496, 61' S.Ct. 643, 85 L.Ed. 971, the Supreme Court has set out the procedure for resolving constitutional issues which are reasonably open to construction. “ * * * [N]o principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them. See, e. g., Railroad Commission of Texas v. Pullman Co., supra; City of Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; Shipman v. Du Pre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877; Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L. Ed. 983; Government & Civic Employees Organizing Committee, C. I. O. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed. 2d 894. This principle does not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise; it serves the. policy of comity inherent in the doctrine of abstention; and it spares the federal courts of unnecessary constitutional adjudication. See City of Chicago v. Fieldcrest Dairies,. Inc., supra, at 172-173, 62 S.Ct. at page 988.” Harrison v. N. A. A. C. P., 1959, 360 U.S. 167, 176-177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152. “Reflected among the concerns which have traditionally counseled a federal court to stay its hand are the desirability of avoiding unseemly conflict between two sovereignties, the unnecessary impairment of state functions, and the premature determination" }, { "docid": "20670466", "title": "", "text": "U.S. 252, 88 S.Ct. 397. However, the statute before us does not regulate First Amendment freedoms, nor does it have a direct impact on such freedoms. Rather this law is an exercise of the police power of the state in the balancing of the maintenance of law and order against the privacy and rights of its citizens. Admittedly, First Amendment overtones are raised in the factual situation presented to us. Plaintiffs have neither alleged nor proved a pattern of use of this statute to chill First Amendment rights or to abridge other constitutional rights. There has been no proof of a pattern of bad faith enforcement or harassment under this statute. Compare Dombrowski v. Pfister, supra, 380 U.S. 490, 85 S.Ct. 1116. The demonstration took place over a year ago. No further incidents between the plaintiffs and the police were put into evidence. Given both the peripheral effect of this statute on First Amendment rights and the fact that the plaintiffs do not appear to be in danger of suffering any harm from the delay created by resort to the state court, we find that this is a proper case for abstention. In so abstaining, we also retain jurisdiction and stay all proceedings until the courts of Rhode Island have had an. opportunity to determine the proper interpretation of R.I.G.L. § 12-7-1. Lake Carriers’ Assn. v. MacMullan, 406 U.S. at 513, 92 S.Ct. 1749; England v. Louisiana State Bd. of Med. Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Shipman v. Dupre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877 (1950); American Federation v. Watson, supra; Spector Motor Service v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944); Chicago v. Fieldcrest Dairies, 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355 (1945); Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). . The facts in Kavanagh were as follows : “The record establishes that on January 20, 1960 plaintiff and Donald Wheeler, a fellow worker, were involved in a highway accident in the town of" }, { "docid": "16218770", "title": "", "text": "of Maryland would so rule, would be unwarranted and would be to ignore the federal statutory requirement of the exhaustion of available state remedies and to subvert the reasonable, necessary and well-established objectives behind the principle of federal abstention in the interest of comity. This doctrine “contemplates only ‘that controversies involving unsettled questions of state law [may] be decided in the state tribunals preliminary to a federal court’s consideration of the underlying federal constitutional questions,’ City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 640, 79 S.Ct. 455, 456, 3 L.Ed.2d 562; ‘that decision of the federal question be deferred until the potentially controlling state-law issue is authoritatively put to rest,’ United Gas Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134, 135-136, 82 S.Ct. 676, 677, 7 L.Ed.2d 623; ‘that federal courts do not decide questions of constitutionality on the basis of preliminary guesses regarding local law,’ Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101; ‘that these enactments should be exposed to state construction or limiting interpretation before the federal courts are asked to decide upon their constitutionality,’ Harrison v. NAACP, 360 U.S. 167, 168, 79 S.Ct. 1025, 1031, 3 L.Ed.2d 1152.” (England v. Louisiana State Board of Medical Examiners, 1964, 375 U.S. 411, 416, f. n. 7, 84 S.Ct. 461, 11 L.Ed.2d 440). Accordingly, the application of petitioner Moss for the issuance of a writ of habeas corpus is hereby denied. Turning next to the petition of Ellie Siskos for habeas corpus relief, for the reasons heretofore discussed in detail when the court was considering the Moss petition, the court concludes that petitioner Siskos, presently released on her own recognizance, has failed to meet the statutory jurisdictional prerequisites to the seeking of habeas corpus relief. This ruling is, of course, dispositive of her petition but again to avoid piecemeal litigation of petitioner’s various claims the court will consider and rule on the other issues raised by the proceedings to date. Petitioner Siskos was arrested and charged in Montgomery County with an offense cognizable in" }, { "docid": "8875118", "title": "", "text": "as “general notions of comity, equity, and federalism applied since the early days of our Union of States.” And I find it difficult if not impossible, to lift one particular ingredient from the brew and then isolate it. And if I could, I dare say it would be impossible to divest it from the flavor of the other ingredients. Thus, if the presence of ah ongoing state proceeding is critical, so is the necessity of proving entitlement to an immediate injunction. So understood, there is a delightful Catch-22 quality about it all: Plaintiff: Aha, you can’t apply Younger, because there is no ongoing state proceeding. Defendant: Aha to you, sir. If there is no ongoing state proceeding, then why do you need an injunction? What’s there to enjoin? On balance, while I agree that perhaps the neatest way of affirming the district court is via the England-res judicata route, I am also prepared to affirm Judge Scalera on the strength of his “irreparable harm” discussion. . Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See also Lake Carriers’ Association v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972) ; Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L. Ed.2d 196 (1971) ; Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970) ; Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970) ; United Gas Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134, 82 S.Ct. 676, 7 L.Ed.2d 623 (1962) ; Clay v. Sun Insurance Office Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960) ; City of Meridian v. Southern Bell Tel. and Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959) ; Albertson v. Millard, Attorney General of Michigan, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983 (1953) ; Spector Motor Co. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944). . Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87" }, { "docid": "3587863", "title": "", "text": "the meaning of a questionable state statute, the district court acted correctly in retaining jurisdiction pending further state court proceedings. Government and Civic Employees, etc., v. Windsor, 1957, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894; Leiter Minerals v. United States, 1957, 352 U.S. 220, 228, 229, 77 S.Ct. 287, 1 L.Ed.2d 267; Albertson v. Millard, 1952, 345 U.S. 242, 245, 73 S.Ct. 600, 97 L.Ed. 983; Spector Motor Co. v. McLaughlin, 1944, 323 U.S. 101, 106, 65 S.Ct. 152; AFL v. Watson, 1945, 327 U.S. 582, 599, 66 S.Ct. 761, 90 L.Ed. 873; City of Chicago v. Fieldcrest Dairies, 1941, 316 U.S. 168, 173, 62 S.Ct. 986, 86 L.Ed. 1355; Railroad Comm’n of Texas v. Pullman Co., 1941, 312 U.S. 496, 501-502, 61 S.Ct. 643, 85 L.Ed. 971. Deference to state action is obviously wise in order to avoid a Constitutional decision which could be rendered unnecessary by a subsequent state court interpretation of the statute in a manner not repugnant to the Constitution. Morey v. Doud, 1957, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485, relied upon by the Company, is not inconsistent with this principle of comity. There the same Constitutional objections raised in the federal court had been considered by the state court in a prior action attacking the validity of the statute in question. The present case is strikingly similar to Spector Motor Co. v. McLaughlin, supra. There the plaintiff brought an action in the district court asking for the same relief as did the Company here— that collection of the state tax be enjoined either on the ground that the tax statute did not apply to the plaintiff’s interstate business or, if the statute were held to cover this business, that it be held unconstitutional as a burden on interstate commerce. The district court held that the tax did not apply to plaintiff’s business. The court of appeals reversed, holding the tax applicable and sustaining its Constitutionality. The Supreme Court vacated the judgment of the court of appeals and remanded the case to the district court with directions to retain jurisdiction pending" }, { "docid": "2091722", "title": "", "text": "Co. v. Dewey, D.C., 91 F.Supp. 891; see Douglas v. City of Jeannette, 319 U. S. 157, 163, 63 S.Ct. 877, 882, 87 L.Ed. 1324; and cases cited in footnote 13 infra. . Shipman v. DuPre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877; American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; Spector Motor Service, Inc., v. McLaughlin, 323 U. S. 101, 65 S.Ct. 152, 89 L.Ed. 101; Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 882, 87 L.Ed. 1324; City of Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971; Beal v. Missouri Pacific R. R. Corp., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577; East Coast Lumber Terminal, Inc., v. Town of Babylon, 2 Cir., 174 F.2d 106, 8 A.L.R.2d 1219; Paris v. Metropolitan Life Ins. Co., 2 Cir., 167 F.2d 834; Teeval Co. v. Dewey, D.C., 91 F.Supp. 891; cf. Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741. . See especially, Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873." }, { "docid": "7594567", "title": "", "text": "a definitive determination of the state law issue by a state tribunal. This course avoids unnecessary federal-state friction, and promotes the vital policy of judicial review that dictates against unnecessary or premature resolution of a federal constitutional question. See C. Wright, supra; Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Kusper v. Pontikes, supra, 414 U.S. at 54-55, 94 S.Ct. 303; Harman v. Forssenius, supra, 380 U.S. at 534, 85 S.Ct. 1177; Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944). See also Rolling Cloud, et al. v. Gill, et al., 412 F.Supp. 1085 (D.Conn., 1976). Here, these requirements are satisfied. There is a state statute susceptible of interpretation by a Connecticut court so as to render decision of the federal constitutional questions posed unnecessary. Connecticut General Statutes § 10-153a, “Right to join professional organizations,” states: “Members of the teaching profession shall have the right to join or refuse to join any organization for professional or economic improvement free from interference, restraint, coercion or discriminatory practices by any employing board of education or administrative agents or representatives thereof.” Turning first to the contractual dues deduction provisions in force in Stratford, Bridgeport, Bloomfield, and Westport, and challenged by appellants, although § 10-153a does not on its face cover those provisions, the Fairfield County and New London County Superior Courts have interpreted the statute as rendering illegal similar dues deduction provisions. Norwalk Federation of Teachers v. Norwalk Teachers Association, No. 14-75-56 (Fairfield County Superior Ct., Mar. 5, 1973); Groton Federation of Classroom Teachers v. Groton Education Association, No. 04-27-50 (New London County Superior Ct., June 26, 1975). Confronted with the specific facts of the instant case, a Connecticut court quite possibly will interpret § 10-153a to mean that, in entering into the challenged contract provisions, these state agencies acted outside their authority, since the statute prohibits the boards from engaging in “interference, restraint, coercion or discriminatory practices.” The case is thus" }, { "docid": "20985847", "title": "", "text": "the “private detective business” referred to in the definition of “Private Detective Agency” would appear not to include the business of rendering watchman and guard service, which is the subject matter of the definition of “Safety Agency”. If this is true consistency might require the definition of “Private Detective” appearing in section 2 to be read in the conjunctive as requiring all private detectives subject to the Act to possess the qualifications to perform the first two types of service described in the definition, i. e. investigator and procurer of evidence, as well as the third type, watchman or guard. Under that construction of the Act those individuals qualified only as watchmen or guards would not be “private detectives” within the statutory definition and would consequently not be required to be licensed under the Act, a construction of the Act which it could be argued is supported by the language of section 31 exempting individuals engaged in the occupation of watchman or guard. Thus it appears that until the Supreme Court of Puerto Rico has given authoritative definition to the scope and applicability of the Private Detectives Act consideration of the constitutional issues raised in this case would be premature and perhaps unnecessary. In such a situation as this the Supreme Court has held that it is appropriate for the district court to abstain from further proceedings until the state courts have been given the opportunity to consider and determine the questions of statutory construction and constitutional validity which are involved. Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S.Ct. 643, 85 S.Ct. 971; Harrison v. NAACP, 1959, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152; Martin v. Creasy, 1959, 360 U.S. 219, 79 S.Ct. 1034, 3 L.Ed.2d 1186; United Gas Pipe Line Co. v. Ideal Cement Co., 1962, 369 U.S. 134, 82 S.Ct. 676, 7 L.Ed.2d 623. As to the plaintiffs’ right to reserve federal constitutional questions see England v. Louisiana State Board of Medical Examiners, 1964, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440. We think that the application of the doctrine" }, { "docid": "1947895", "title": "", "text": "the state claims they must view them “in light of the constitutional objections presented to the District Court”, Government & Civic Employees Organizing Committee v. Windsor, 353 U.S. 364, 366, 77 S.Ct. 838, 839, 1 L.Ed.2d 894 (1957), even though the litigant need not present his federal claims to the state courts for decision but only to “inform those courts what his federal claims are,” so that they may be seen in full context. England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 420, 84 S.Ct. 461, 467, 11 L.Ed.2d 440 (1964). See also Martin v. Creasy, 360 U.S. 219, 225, 79 S.Ct. 1034, 3 L.Ed.2d 1186 (1959); Harrison v. NAACP, 360 U.S. 167, 177-178, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959). . Thus, for instance, it has been held repeatedly that the federal courts should not take any premature action that might interfere with the orderly conduct of state programs or regulatory schemes. E. g., Martin v. Creasy, 360 U.S. 219, 79 S.Ct. 1034, 3 L.Ed.2d 1186 (1959); Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). . Cf. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958); United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953). . It has long been on the statute books and has several times been interpreted by Pennsylvania courts, including the state supreme court. See part VII, infra. . Needless to say, a construction designed in part to obviate the constitutional problems would not be permissible with respect to count three, as it might for count two, because the asserted constitutional difficulties do not arise from the Public Accommodations Act. The continuing authorization, if any, for the racial exclusion stems instead from the will. See note 18, supra," }, { "docid": "23638449", "title": "", "text": "United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944); Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). It has also been approved when decision by the federal court would unduly strain the relationship between the state and federal jurisdictions. See, e. g., Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Alabama Pub. Serv. Comm’n v. Southern Ry., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951). But the mere adjudication by a federal court of a particular issue identical with an issue involved in pending litigation in a state court has never been considered so irritable to state prerogatives as to constitute a ground for federal abstention, even though the proceeding in the state court became truncated through an application of the rules of res judicata or collateral estoppel. Moreover, as this controversy involves our national foreign affairs, it is certainly appropriate for its determination to be made on the merits by a court of the United States. The court below properly exercised its discretion in declining to abstain from its duty of adjudication. Since the federal court had jurisdiction to decide the merits of the controversy between the Cuban national bank and Farr, Whitlock, we now come to a consideration of those merits. The substantive issues raised by the plaintiff’s claims against the state-court-appointed receiver are identical with those raised against Farr, Whitlock. As we have jurisdiction to adjudicate those substantive issues, we find it unnecessary and unwise at this time, in light of the decision we reach on the merits, to go into the question of the power of a federal court to enjoin a state appointed receiver. As federal court jurisdiction over the present case rests upon the diversity of citizenship of the parties, we look, initially at least, to the law of the State of New York to determine the litigants’ rights. To recover judgment on a theory of conversion," }, { "docid": "6823655", "title": "", "text": "Justice Harlan wrote in Harrison v. N. A. A. C. P., 360 U.S. 167, 176-177, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959): “According every consideration to the opinion of the majority below, we are nevertheless of the view that the District Court should have abstained from deciding the merits of the issues tendered it, so as to afford the Virginia courts a reasonable opportunity to construe the three statutes in question. In other words, we think that the District Court in dealing with Chapters 31, 32, and 35 should have followed the same course that it did with respect to Chapters 33 and 36. “This now well-established procedure is aimed at the avoidance of unnecessary interference by the federal courts with proper and validly administered state concerns, a course so essential to the balanced working of our federal system. To minimize the possibility of such interference a ‘scrupulous regard for the rightful independence of state governments * * * should at all times actuate the federal courts,’ Matthews v. Rodgers, 284 U.S. 521, 525 [52 S.Ct. 217, 76 L.Ed. 447], as their ‘contribution * * * in furthering the harmonious relation between state and federal authority * * *.’ Railroad Comm’n [of Texas] v. Pullman Co., 312 U.S. 496, 501 [61 S.Ct. 643, 85 L.Ed. 971]. In the service of this doctrine, which this Court has applied in many different contexts, no principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to intrepretation until the state courts have been afforded a reasonable opportunity to pass upon them. See, e. g., Railroad Comm’n [of Texas] v. Pullman Co., supra; [City of] Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168 [62 S.Ct. 986, 86 L.Ed. 1355]; Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101 [65 S.Ct. 152, 89 L.Ed. 101]; American Federation of Labor v. Watson, 327 U.S. 582 [66 S.Ct. 761, 90 L.Ed. 873]; Shipman v. DuPre, 339 U.S. 321 [70 S.Ct. 640, 94 L.Ed. 877]; Albertson v. Millard, 345 U.S. 242 [73 S.Ct. 600, 97" }, { "docid": "20670467", "title": "", "text": "created by resort to the state court, we find that this is a proper case for abstention. In so abstaining, we also retain jurisdiction and stay all proceedings until the courts of Rhode Island have had an. opportunity to determine the proper interpretation of R.I.G.L. § 12-7-1. Lake Carriers’ Assn. v. MacMullan, 406 U.S. at 513, 92 S.Ct. 1749; England v. Louisiana State Bd. of Med. Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Shipman v. Dupre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877 (1950); American Federation v. Watson, supra; Spector Motor Service v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944); Chicago v. Fieldcrest Dairies, 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355 (1945); Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). . The facts in Kavanagh were as follows : “The record establishes that on January 20, 1960 plaintiff and Donald Wheeler, a fellow worker, were involved in a highway accident in the town of Westerly. When James A. Keane of the Westerly police department arrived at the scene, plaintiff was standing outside Wheeler’s car at the door on the operator’s side and Wheeler was seated behind the wheel. The defendant, a lieutenant in the Westerly police department and apparently the superior officer in charge, arrived shortly thereafter and was advised by Officer Keane that he had Wheeler and plaintiff in custody. It is uncontradicted that Officer Keane advised defendant that both men had been drinking and that, although each had identified Wheeler as the operator, he, Officer Keane, was not sure which of the men was operating the car when it struck and knocked down two telephone poles. Asked why he was not sure, Keane replied, ‘We’ve had trouble in the past on cases like this.’ It further appears that when the investigation had been completed defendant directed Officer Keane to take both men to a doctor for examination preparatory to a possible charge of operating under the influence of liquor. The substance of defendant’s testimony, more or less" }, { "docid": "16218769", "title": "", "text": "the provisions of Article 5, section 12, wherein although it is provided that a judgment of a Circuit Court “in the proper exercise of its jurisdiction on appeal” is final and unappealable, conversely, it is recognized that when the issue raised is one of lack of jurisdiction in the Circuit Court the defendant has the right of appeal to the Court of Special Appeals of Maryland. Were that court to rule against him, the petitioner should then seek review in the Court of Appeals of Maryland by way of a petition for a writ of certiorari. For the federal court to step in at this point of the proceedings before the issue of lack of jurisdiction has ever been tendered by petitioner Moss to the Circuit Court for Charles County for consideration ; and for this court to assume that the Circuit Court for Charles County, if the jurisdictional issue were presented to it, would rule adversely to peti tioner and further that the Court of Special Appeals of Maryland and the Court of Appeals of Maryland would so rule, would be unwarranted and would be to ignore the federal statutory requirement of the exhaustion of available state remedies and to subvert the reasonable, necessary and well-established objectives behind the principle of federal abstention in the interest of comity. This doctrine “contemplates only ‘that controversies involving unsettled questions of state law [may] be decided in the state tribunals preliminary to a federal court’s consideration of the underlying federal constitutional questions,’ City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 640, 79 S.Ct. 455, 456, 3 L.Ed.2d 562; ‘that decision of the federal question be deferred until the potentially controlling state-law issue is authoritatively put to rest,’ United Gas Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134, 135-136, 82 S.Ct. 676, 677, 7 L.Ed.2d 623; ‘that federal courts do not decide questions of constitutionality on the basis of preliminary guesses regarding local law,’ Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101; ‘that these enactments should be" }, { "docid": "23638448", "title": "", "text": "the pending state court litigation, abstained from entering a judgment. But the Supreme Court has announced: “The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.” (County of Allegheny v. Frank Ma-shuda Company, 360 U.S. 185, 188-189, 79 S.Ct. 1060, 1062, 3 L.Ed.2d 1163 (1959).) Abstention has been approved when it permits the federal court to avoid reaching a decision of constitutional magnitude, or when state court determination of relevant issues of state law would present the federal constitutional issue in a different posture. City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959); Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944); Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). It has also been approved when decision by the federal court would unduly strain the relationship between the state and federal jurisdictions. See, e. g., Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Alabama Pub. Serv. Comm’n v. Southern Ry., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951). But the mere adjudication by a federal court of a particular issue identical with an issue involved in pending litigation in a state court has never been considered so irritable to state prerogatives as to constitute a ground for federal abstention, even though the proceeding in the state court became truncated through an application of the rules of res judicata or collateral estoppel. Moreover, as this controversy involves our national foreign affairs, it" }, { "docid": "1509110", "title": "", "text": "of the Code which provides that the Code shall take precedence over city charter provisions which are in conflict. In this connection, defendants maintain that § 34A-103(g) of the Code defines an elector in such a manner as to save the city charter provision in question from conflict with § 34A-102 of the Code. .....\" Secondly, plaintiffs alleged that the charter provision purging voters because of the failure to pay city ad valorem taxes was invalid in that it denied them rights secured by the equal protection clause of the Fourteenth Amendment. A hearing was conducted on defendants’ motion to dismiss on May 1, 1970. Thereafter an order was entered by the district court dismissing the action on the basis of the abstention doctrine and this appeal followed. The doctrine of abstention as fashioned in Railroad Commission of Texas v. Pullman, 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, grew out of a desire to avoid federal constitutional questions where the case at hand could be decided by an adjudication in the state courts. It has generally been-held proper where the constitutional issue might be mooted or presented in a different posture by a state court determination, Spector Motor Service v. McLaughlin, 1944, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; Chicago v. Fieldcrest Dairies, Inc., 1941, 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; to avoid disruption of a state administrative process, Burford v. Sun Oil Co., 1942, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424, or where needless friction in federal-state relationships might be otherwise avoided. Louisiana Power and Light Co. v. City of Thibodaux, 1959, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058. Deference to state court adjudication should be employed only where the issue of state law is uncertain, Harrison v. NAACP, 1959, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152, and not where it is clear that no state construction could moot the federal constitutional issue. Baggett v. Bullitt, 1964, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377. Another rule of some pertinence here is contained in" }, { "docid": "8875119", "title": "", "text": "496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See also Lake Carriers’ Association v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972) ; Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L. Ed.2d 196 (1971) ; Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970) ; Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970) ; United Gas Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134, 82 S.Ct. 676, 7 L.Ed.2d 623 (1962) ; Clay v. Sun Insurance Office Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960) ; City of Meridian v. Southern Bell Tel. and Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959) ; Albertson v. Millard, Attorney General of Michigan, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983 (1953) ; Spector Motor Co. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944). . Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). See also Alabama Public Service Commission v. Southern R. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951) ; Magaziner v. Monte-muro, 468 F.2d 782 (3d Cir. 1972) ; Reich-man v. Pittsburgh National Bank, 465 F.2d 16, 18 (3d Cir. 1972) ; Allegheny Airlines, Inc. v. Pennsylvania Public Utility Commission, 465 F.2d 237 (3d Cir. 1972). Cf. ALI Study of the Division of Jurisdiction Between State and Federal Courts, § 1371(d) ; § 1371(d) of S. 1876, 93d Congress, 1st Session, proposed Federal Court Jurisdiction Act of 1973. . England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, II L.Ed.2d 440 (1964). . Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 92 L.Ed. 898 (1948). . C. Wright, Law of Federal Courts, 1972 Pocket Part, 23. . At 980. . At 985. . At 1009. . At 1021." }, { "docid": "541206", "title": "", "text": "50 (1965). . See Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959), where there was a finding that the state law was uncertain and abstention was ordered. In NAACP v. Bennett, 360 U.S. 471, 79 S.Ct. 1192, 3 L.Ed.2d 1375 (1959) the supreme court reversed the district court for failing to consider whether the state law was uncertain. Again, the major consideration behind the doctrine of abstention is that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them. See e. g., Government & Civic Employees, etc. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957) ; Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983 (1953); Shipman v. DuPre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877 (1950); American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873 (1946); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944); City of Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355 (1942); Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). . See, e. g., Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962). . See Baggett v. Bullitt, supra note 9 at pages 376-377, 84 S.Ct. 1316, and note 13. Moreover, even where the state court has considered the precise issue constitutionally attacked in the federal court, abstention has been exercised on the ground that the federal constitutional objections had not been presented to the state court and might have caused that court to interpret the statute differently had those objections been presented. City of Chicago v. Achison, T. & S. F. R. R., 357 U.S. 77, 78 S.Ct. 1063," }, { "docid": "3587862", "title": "", "text": "that the Company’s operations were subject to the tax under the terms of the statute itself. Having declined to make a determination as to the scope of the statute, the district court did not reach the demand for a three judge court. We cannot hold that the district court was wrong in concluding that the preliminary question as to the application of the tax to the present case was not necessarily determined by the Michigan Supreme Court’s decision in the Detroit & Cleveland case. The construction of a state statute by the state’s highest court is, of course, binding upon the federal courts. For this reason the Supreme Court has repeatedly ruled that if the state courts have not authoritatively construed a statute, the federal court “ought not to pass on questions of constitutionality * * * on the basis of preliminary guesses regarding local law.” Spector Motor Co. v. McLaughlin, 1944, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101. In the absence of clear guidance from the state courts as to the meaning of a questionable state statute, the district court acted correctly in retaining jurisdiction pending further state court proceedings. Government and Civic Employees, etc., v. Windsor, 1957, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894; Leiter Minerals v. United States, 1957, 352 U.S. 220, 228, 229, 77 S.Ct. 287, 1 L.Ed.2d 267; Albertson v. Millard, 1952, 345 U.S. 242, 245, 73 S.Ct. 600, 97 L.Ed. 983; Spector Motor Co. v. McLaughlin, 1944, 323 U.S. 101, 106, 65 S.Ct. 152; AFL v. Watson, 1945, 327 U.S. 582, 599, 66 S.Ct. 761, 90 L.Ed. 873; City of Chicago v. Fieldcrest Dairies, 1941, 316 U.S. 168, 173, 62 S.Ct. 986, 86 L.Ed. 1355; Railroad Comm’n of Texas v. Pullman Co., 1941, 312 U.S. 496, 501-502, 61 S.Ct. 643, 85 L.Ed. 971. Deference to state action is obviously wise in order to avoid a Constitutional decision which could be rendered unnecessary by a subsequent state court interpretation of the statute in a manner not repugnant to the Constitution. Morey v. Doud, 1957, 354 U.S. 457, 77 S.Ct." }, { "docid": "5258207", "title": "", "text": "General before bringing suit against “another arm or agency” of the state government. See also Temple, v. State ex rel. Russell, 1920, 123 Miss. 741, 86 So. 580. Governor Finch does not dispute that he failed to request the Attorney General to bring suit. His position is that he was not required to do so because of unusual circumstances in the suit. Because the Governor lacks standing in any event, we need not decide whether his failure would also have prevented his prosecution of the suit. . E. g., Lake Carriers’ Ass’n v. MacMullan, 1972, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257; Askew v. Hargrave, 1971, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196; United Gas Pipe Line Co. v. Ideal Cement Co., 1962, 369 U.S. 134, 82 S.Ct. 676, 7 L.Ed.2d 623; City of Meridian v. Southern Bell Tel. & Tel. Co., 1959, 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 652; Albertson v. Millard, 1953, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; Spector Motor Serv., Inc. v. McLaughlin, 1944, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101. See generally Developments in the Law — Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1250-64 (1977). . This procedure is apparently not available in Mississippi. See 1A Moore’s Federal Practice ¶ 0.203 [5] (2d ed. 1978). . The statutory duties of the State Board of Health are enumerated in Miss.Code Ann. § 41-3-15, note 2, supra. . F.R.C.P. 19(a) provides, in part: A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial" } ]

[ { "docid": "22425922", "title": "", "text": "Statute of Frauds requires a writing for any contract concerning the sale of goods in excess of $500 to be enforced. In light of the failure of the defendant to submit evidentiary proof in admissible form ..., it has not made a sufficient showing to defeat the plaintiff’s motion for summary judgment. Lighting Horizons, Inc. v. E.A. Kahn & Co., 120 A.D.2d 648, 649, 502 N.Y.S.2d 398, 399 (2d Dep’t 1986) (citations omitted). The district court was correct, therefore, in awarding summary judgment in favor of The Limited. III. Appellants’ Opportunity for Discovery Finally, we must address appellants’ claim that the district court did not allow them adequate discovery, and that they therefore were unjustly deprived of the ability to meet their burden of production under Federal Rule of Civil Procedure 56. Under Rule 56(f), summary judgment “may be inappropriate where the party opposing it shows ... that he cannot at the time present facts essential to justify his opposition.” Fed.R.Civ.P. 56(e) advisory committee’s note (1963). The nonmoving party should not be “railroaded” into his offer of proof in opposition to summary judgment. See Celotex, 477 U.S. at 326, 106 S.Ct. at 2554-2555. The nonmoving party must have “had the opportunity to discover information that is essential to his opposition” to the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 106 S.Ct. 2505, 2511 n. 5, 91 L.Ed.2d 202 (1986). But the trial court may properly deny further discovery if the nonmoving party has had a fully adequate opportunity for discovery. See First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290-99, 88 S.Ct. 1575, 1593-98, 20 L.Ed.2d 569 (1968); Bur lington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 927-28 (2d Cir.1985). From the record, it appears that appellants had ample time to conduct discovery. Moreover, as the district court noted, appellants Trebor and Rotano proffered no persuasive basis for the district court to conclude that further discovery would yield proof of a written agreement that would satisfy the statute of frauds, which was, after all," } ]

[ { "docid": "4145129", "title": "", "text": "return a verdict for that party.” Id. at 249, 106 S.Ct. 2505 (citation omitted). “A nonmoving party’s failure of proof concerning the existence of an element essential to its case on which the nonmoving party will bear the burden of proof at trial necessarily renders all other facts immaterial and entitles the moving party to summary judgment as a matter of law.” Dairyland, 16 F.3d at 1202 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548). III. Standard of Review for Requests for Discovery Under RCFC 56(d) RCFC 56(d) governs discovery afforded to a party opposing a summary judgment motion: When Facts Are Unavailable to the Non-movant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. RCFC 56(d). The nonmovant will generally be given a chance to conduct discovery that is reasonably directed to obtaining facts essential to its case. Opryland USA Inc. v. Great Am. Music Show, Inc., 970 F.2d 847, 852 (Fed.Cir.1992) (citations omitted); see Dunkin’ Donuts of Am., Inc. v. Metallurgical Exoproducts Corp., 840 F.2d 917, 919 (Fed.Cir.1988) (vacating a grant of summary judgment because no opportunity for the discovery of pertinent facts was afforded the nonmovant). If a continuance is granted under this rule, the court must ensure that the nonmovant has “adequate time for discovery.” Dunkin’ Donuts, 840 F.2d at 919 (citing Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548). The opportunity provided by RCFC 56(d) to conduct discovery while resisting summary judgment is not unlimited, however. Rule 56(d) “provides for comparatively limited discovery for the purpose of showing facts sufficient to withstand a summary judgment motion.” First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 265, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). The non-moving party will not be allowed to conduct discovery that has no chance of leading to the denial of summary judgment for the movant. See" }, { "docid": "7805932", "title": "", "text": "could decide in its favor.” Senno, 812 F.Supp.2d at 467-68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “[S]ummary judgment should only be granted ‘[i]f after discovery, the nonmov-ing party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.’ ” Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000) (quoting Berger v. United States, 87 F.3d 60, 65 (2d Cir.1996)). Timing is key: “The nonmoving party must have had the opportunity to discover information that is essential to his opposition to the motion for summary judgment,” and “[o]nly in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.” Id. (internal quotation marks and citations omitted). “Accordingly, ‘[t]he burden on the moving party is greater in cases where discovery is incomplete.’ ” Indergit v. Rite Aid Corp., No. 08 Civ. 11364(PGG), 2010 WL 1327242, at *3 (S.D.N.Y. Mar. 31, 2010) (quoting Saffire Corp. v. Newkidco., LLC, 286 F.Supp.2d 302, 306 (S.D.N.Y.2003)). B. Discussion In its motion for partial summary judgment, East River argues that the Aaron claims are precluded, under the doctrines of res judicata and collateral estoppel, and under New York Executive Law § 300, by (1) DHR’s initial no probable cause determination in its investigation of Aaron’s complaint and (2) the Appellate Division holding, in East River’s Article 78 proceeding, that DHR acted improperly when it reopened its file on Aaron after that initial determination. Doc. 29. This argument fails. Pursuant to the Full Faith and Credit statute, 28 U.S.C. § 1738, federal courts are required “to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.” Kremer v. Chem. Const. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). This principle includes no exception for state court decisions “upholding a state administrative agency’s rejection of [a] ... discrimination claim" }, { "docid": "18209456", "title": "", "text": "and how they are to be obtained; (2) how those facts are reasonably expected to create a genuine issue of material fact; (3) what effort affiant has made to obtain them[;] and (4) why the affiant was unsuccessful in those efforts. Behzadi & Brenjian Carpet v. David & Son Oriental Antique Rugs Corp., No. 07 Civ. 7073(BSJ)(DFE), 2009 WL 773312, at *2 (S.D.N.Y. Mar. 19, 2009) (citing Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 303 (2d Cir.2003)). This provision “provides a mechanism whereby a party may avoid summary judgment if the party can make a showing that it is entitled to a continuance to permit further discovery.” Dangerfield v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 02 Civ. 2561(KMW) (GWG), 2006 WL 335357, at *7 (S.D.N.Y. Feb. 15, 2006) (citing Fed.R.Civ.P. 56(f)). However, “the rule ‘applies to summary judgment motions made before discovery is concluded.’ ” Id. (quoting McAllister v. New York City Police Dep’t, 49 F.Supp.2d 688, 696 n. 5 (S.D.N.Y.1999)); see also Hellstrom v. United States Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000) (“[S]ummary judgment should only be granted if after discovery, the nonmoving party ‘has failed to make a sufficient showing on an essential element of [its] case with respect to which it has the burden of proof.’ ” (quotations omitted) (emphasis in original)); Chimarev v. TD Waterhouse Investor Servs., Inc., 280 F.Supp.2d 208, 229 n. 1 (S.D.N.Y.2003). 2. Analysis The express terms of Rule 56(f) limit the Court’s ability to re-open discovery to instances in which the “party opposing the motion shows by affidavit that ... it cannot present facts essential to justify its opposition.” FecLR.Civ.P. 56(f). Plaintiff has not taken that position. Rather, after repeatedly arguing that it has met its burden on the causation element of its claims (see, e.g., Pl.’s Supp. Mem. at 2), Plaintiff seeks to reopen discovery as an alternative argument to avoid summary judgment in favor of Defendants. However, Rule 56(f) “is not a shield against all summary judgment motions.” Petitt v. Celebrity Cruises, Inc., 153 F.Supp.2d 240, 261 (S.D.N.Y.2001); see also RodriguezCuervos v." }, { "docid": "1600220", "title": "", "text": "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). A dispute regarding a material fact is genuine “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). However, summary judgment should only be granted “[i]f after discovery, the nonmoving party ‘has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.’ ” Berger v. United States, 87 F.3d 60, 65 (2d Cir.1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (alteration in original and emphasis added). “The nonmoving party must have ‘had the opportunity to discover information that is essential to his opposition’ to the motion for summary judgment.” Trebor Sportswear Co. v. The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir.1989) (quoting Anderson, 477 U.S. at 250 n. 5, 106 S.Ct. 2505). Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery. See Sutera v. Schering Corp., 73 F.3d 13, 18 (2d Cir.1995); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995); Jones v. Coughlin, 45 F.3d 677, 680 (2d Cir.1995). Here, Hellstrom was denied the opportunity to conduct discovery of any sort, and was even precluded from taking depositions. Hellstrom did indeed have access to three boxes of information used during the grievance proceedings and to two binders containing the administrative record; but that information was compiled exclusively by the VA, and contained only interviews and investigative findings focusing on allegations of Hellstrom’s misconduct. The information was not directly pertinent to Hellstrom’s First Amendment claims, which form the core of his complaint. To state a claim for First Amendment retaliation, a public employee such as Hellstrom must establish" }, { "docid": "4839832", "title": "", "text": "bears the burden of proof on a particular issue at trial, the moving party’s burden can be met simply by demonstrating “to the district court that there is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. After the moving party has met its initial burden, “the adverse party’s response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). Summary judgment is therefore appropriate when the nonmoving party fails to rebut by making a factual showing “based on the affidavits or by depositions and admissions on file” that is “sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir.1992). Celotex sets forth the basic presumption that summary judgment is only appropriate “after adequate time for discovery.” 477 U.S. at 322, 106 S.Ct. 2548. Indeed, on summary judgment, the non-moving party is relieved of its burden to set forth facts showing there is a genuine issue for trial when it “shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition[.]” Fed. R. Civ. P. 56(f); see also Anderson, 477 U.S. at 250 n. 5, 106 S.Ct. 2505 (“[The] requirement [that a nonmoving party set forth material facts] in turn is qualified by Rule 56(f)’s provision that summary judgment be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.”). An inability to access facts material to one’s case will naturally be remedied by providing the nonmoving party additional time to conduct discovery. Rule 56(f) recognizes this, and “provides for the more just adjudication of disputes by ensuring that parties are not ‘railroaded’ by a premature motion for summary judgment.’ ” Croker v. Applica Consumer Prods., Inc., No. Civ. 05-3054, 2006 WL 626425 at *3" }, { "docid": "7805931", "title": "", "text": "genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets its burden, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Saenger v. Montefiore Med. Ctr., 706 F.Supp.2d 494, 504 (S.D.N.Y.2010) (internal citation and quotation marks omitted). In deciding a motion for summary judgment, the Court must “construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir.2004)). However, in opposing a motion for summary judgment, the non-moving party may not rely on unsupported assertions, conjecture or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). To prevail, “the non-moving party must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor.” Senno, 812 F.Supp.2d at 467-68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “[S]ummary judgment should only be granted ‘[i]f after discovery, the nonmov-ing party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.’ ” Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000) (quoting Berger v. United States, 87 F.3d 60, 65 (2d Cir.1996)). Timing is key: “The nonmoving party must have had the opportunity to discover information that is essential to his opposition to the motion for summary judgment,” and “[o]nly in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.” Id. (internal quotation marks and citations omitted). “Accordingly, ‘[t]he burden on the moving party is greater in cases where discovery is incomplete.’ ” Indergit v. Rite Aid Corp., No. 08 Civ. 11364(PGG), 2010 WL 1327242, at *3" }, { "docid": "1600219", "title": "", "text": "whether he made comments about affirmative action. Hellstrom now appeals, claiming that the district court erred because: (1) it granted summary judgment to the VA pri- or to discovery; (2) his reassignment violated the First Amendment; and (3) a procedural error by the VA in relation to Local Rule 7.1(f) (N.D.N.Y.) should have barred summary judgment. For the reasons set forth below, we vacate and remand. DISCUSSION We review the district court’s decision to grant summary judgment de novo. See Bedoya, 91 F.3d at 351. I. The VA’s Motion for Summary Judgment Hellstrom contends that the district court erred by granting summary judgment to the VA prior to discovery. The VA argues that the district court properly granted summary judgment, and that no discovery was necessary because: (1) Hellstrom’s complaint was dismissed solely as a matter of law; (2) Hellstrom showed no prejudice from the lack of discovery; and (3) Hellstrom had already been given informal discovery during the grievance proceedings. 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). A dispute regarding a material fact is genuine “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). However, summary judgment should only be granted “[i]f after discovery, the nonmoving party ‘has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.’ ” Berger v. United States, 87 F.3d 60, 65 (2d Cir.1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (alteration in original and emphasis added). “The nonmoving party must have ‘had the opportunity to discover information that is essential to his opposition’ to the motion for summary judgment.” Trebor Sportswear Co. v. The" }, { "docid": "14996472", "title": "", "text": "interpreted by court opinions, that when a party facing an adversary’s motion for summary judgment reasonably advises the court that it needs discovery to be able to present facts needed to defend the motion, the court should defer decision of the motion until the party has had the opportunity to take discovery and rebut the motion. See Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir .1995) (holding that grant of judgment was premature where plaintiff submitted properly supported Rule 56(f) request for further discovery in opposition to defendant’s motion for summary judgment); see also Hellstrom v. U.S. Dep’t of Veteran’s Affairs, 201 F.3d 94, 97 (2d Cir.2000) (“The nonmoving party must have had the opportunity to discover information that is essential to [its] opposition to the motion for summary judgment. Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.” (internal quotation marks and citation omitted)). Here, the district judge construed the Standing Order to justify dismissal of the action by reason of the plaintiffs failure to possess every fact needed to prove the essential elements of the claim (and more) at the time of the complaint without any opportunity for discovery. We do not think the Standing Order can possibly be intended to impose such an obligation. The district court might also have understood the entry of judgment as a sanction imposed by reason of the plaintiffs violation of a court order. We have observed that the grant of judgment as a sanction for violation of a court order is an extreme and harsh remedy. See Valentine, 29 F.3d at 49 (“Dismissal with prejudice is a harsh remedy to be used only in extreme situations .... ” (alteration and internal quotation marks omitted)). In general, this extreme sanction is appropriately imposed only in cases of willfulness, bad faith, or reasonably serious fault. See Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 640, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Bambu Sales, Inc. v. Ozak Trading Inc., 58" }, { "docid": "14996471", "title": "", "text": "the information it possesses in helpfully categorized form, as an aid to the court and to the accused defendant. But it may not make the prosecution of the action dependent on the plaintiffs ability to furnish more information than is required, as a matter of law, to prove the essential elements of the claim. Second, the district court gave the plaintiff no opportunity to conduct discovery so as to fill the deficiencies in the information it provided. Although Fed. R.Civ.P. 11(b) seeks to ensure, by imposing responsibility on attorneys, that claims are “warranted” and “likely to have evidentiary support after a reasonable opportunity for further investigation or discovery,” it makes clear by the latter quoted phrase that a plaintiff is not required to know at the time of pleading all facts necessary to establish the claim. See O’Brien v. Alexander, 101 F.3d 1479, 1489 (2d Cir.1996) (a sanction under Rule 11(b) may not be imposed for failure to make reasonable inquiry “unless a particular allegation is utterly lacking in support”). Similarly, Fed.R.Civ.P. 56(f) provides, as interpreted by court opinions, that when a party facing an adversary’s motion for summary judgment reasonably advises the court that it needs discovery to be able to present facts needed to defend the motion, the court should defer decision of the motion until the party has had the opportunity to take discovery and rebut the motion. See Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir .1995) (holding that grant of judgment was premature where plaintiff submitted properly supported Rule 56(f) request for further discovery in opposition to defendant’s motion for summary judgment); see also Hellstrom v. U.S. Dep’t of Veteran’s Affairs, 201 F.3d 94, 97 (2d Cir.2000) (“The nonmoving party must have had the opportunity to discover information that is essential to [its] opposition to the motion for summary judgment. Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.” (internal quotation marks and citation omitted)). Here, the district judge construed the Standing Order to justify" }, { "docid": "18209457", "title": "", "text": "201 F.3d 94, 97 (2d Cir.2000) (“[S]ummary judgment should only be granted if after discovery, the nonmoving party ‘has failed to make a sufficient showing on an essential element of [its] case with respect to which it has the burden of proof.’ ” (quotations omitted) (emphasis in original)); Chimarev v. TD Waterhouse Investor Servs., Inc., 280 F.Supp.2d 208, 229 n. 1 (S.D.N.Y.2003). 2. Analysis The express terms of Rule 56(f) limit the Court’s ability to re-open discovery to instances in which the “party opposing the motion shows by affidavit that ... it cannot present facts essential to justify its opposition.” FecLR.Civ.P. 56(f). Plaintiff has not taken that position. Rather, after repeatedly arguing that it has met its burden on the causation element of its claims (see, e.g., Pl.’s Supp. Mem. at 2), Plaintiff seeks to reopen discovery as an alternative argument to avoid summary judgment in favor of Defendants. However, Rule 56(f) “is not a shield against all summary judgment motions.” Petitt v. Celebrity Cruises, Inc., 153 F.Supp.2d 240, 261 (S.D.N.Y.2001); see also RodriguezCuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 28 (1st Cir.1999) (“[A] party may not attempt to meet a summary judgment challenge head-on but fall back on Rule 56(f) if its first effort is unsuccessful.” (internal quotation omitted)). Nor is this procedure a measure of last resort to be invoked when the non-movant wishes to proceed “out of an abundance of caution.” (Pl.’s May 11, 2009 Pre-Motion Ltr. at 2 n. 1.) Therefore, for the reasons stated below, Plaintiffs motion is denied. First, Plaintiff has not explained to the Court’s satisfaction why it did not seek to develop the proposed supplemental expert opinions during discovery, and it cannot be said that Plaintiff has been “railroaded” by a premature summary judgment motion. Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In fact, on January 20, 2006, at the oral argument regarding Defendants’ motion to dismiss pursuant to Rule 12(b)(6), Judge Karas called into question Plaintiffs theory of causation and suggested that it would be one of the central issues in the" }, { "docid": "22538629", "title": "", "text": "F.3d 345, 362 (2d Cir. 2001) (observing that where the district court denied the plaintiff any opportunity to conduct discovery and considered a partial summary judgment motion filed two months after the filing of the complaint, “[faulting [plaintiff] for failure to make a showing of ... matters that would ... be beyond her personal knowledge [] was incompatible with the court’s denial of discovery”). “Fed.R.Civ.P. 56(f) provides, as interpreted by court opinions, that when a party facing an adversary’s motion for summary judgment reasonably advises the court that it needs discovery to be able to present facts needed to defend the motion, the court should defer decision of the motion until the party has had the opportunity to take discovery and rebut the motion.” Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 386 (2d Cir.2001). Accordingly, we have held that summary judgment should only be granted if “after discovery, the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.” Hellstrom v. United States Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000) (internal quotation marks omitted) (alterations in original). “Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.” Id.; accord Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir.1989) (“Under Rule 56(f), summary judgment may be inappropriate where the party opposing it shows ... that he cannot at the time present facts essential to justify his opposition. The nonmov-ing party should not be ‘railroaded’ into his offer of proof in opposition to summary judgment. The nonmoving party must have had the opportunity to discover information that is essential to his opposition to the motion for summary judgment.” (internal quotations and citations omitted)). The district court concluded that no discovery was necessary in this case because “[t]he parties’ dispute is over whether they needed to do more before they could use their letterhead under the law, and I’m satisfied" }, { "docid": "3418697", "title": "", "text": "sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,” or by pointing to “an absence of evidence to support the nonmov-ing party’s case.” Id. at 322, 325, 106 S.Ct. 2548; see also Exigent Tech. v. Atrana Solutions, Inc., 442 F.3d 1301, 1307-1308 (Fed. Cir. 2006) (discussing Celotex Corp.). The court must view the evidence in the light most favorable to the nonmov-ant and may not weigh the evidence, assess the credibility of witnesses, or resolve issues of fact. See Anderson, 477 U.S. at 249, 255, 106 S.Ct. 2505; Netscape Comm’s Corp. v. Konrad, 295 F.3d 1315, 1319 (Fed. Cir. 2002) (“When ruling on a motion for summary judgment, all of the nonmovant’s evidence is to be credited and all justifiable inferences are to be drawn in the nonmovant’s favor.”) (citations omitted). In a case such as this, when discovery is ongoing, courts must also evaluate whether “adequate time for discovery” has elapsed so that the nonmovant is not “railroaded by a premature motion for summary judgment.” Celotex Corp., 477 U.S. at 322, 326, 106 S.Ct. 2548 (internal quotation marks omitted). A party opposing summary judgment because “it cannot present facts essential to justify its opposition” may ask the court to defer consideration of or deny the motion while it continues discovery. USCIT Rule 56(d) (allowing the court .to defer or deny the motion, grant further time for discovery, or issue any other appropriate order); see also Celotex Corp., 477 U.S. at 326, 106 S.Ct. 2548; Baron Servs., Inc. v. Media Weather Innovations LLC, 717 F.3d 907 (Fed. Cir. 2013) (addressing Federal Rule of Civil Procedure 56(d) and noting that the rule applies when party opposing summary judgment has been unable to obtain responses to discovery requests and discovery sought would be relevant to issues presented for summary judgment). Rule 56(d) may not be used to aid a party that has been “lazy or dilatory” or has “failed to make use of the various discovery mechanisms” at its disposal. Exigent Tech. v. Atrana Solutions," }, { "docid": "4839833", "title": "", "text": "time for discovery.” 477 U.S. at 322, 106 S.Ct. 2548. Indeed, on summary judgment, the non-moving party is relieved of its burden to set forth facts showing there is a genuine issue for trial when it “shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition[.]” Fed. R. Civ. P. 56(f); see also Anderson, 477 U.S. at 250 n. 5, 106 S.Ct. 2505 (“[The] requirement [that a nonmoving party set forth material facts] in turn is qualified by Rule 56(f)’s provision that summary judgment be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.”). An inability to access facts material to one’s case will naturally be remedied by providing the nonmoving party additional time to conduct discovery. Rule 56(f) recognizes this, and “provides for the more just adjudication of disputes by ensuring that parties are not ‘railroaded’ by a premature motion for summary judgment.’ ” Croker v. Applica Consumer Prods., Inc., No. Civ. 05-3054, 2006 WL 626425 at *3 (D.N.J. Mar. 10, 2006) (citing Celotex, 477 U.S. at 326, 106 S.Ct. 2548). Whether a court should grant a Rule 56(f) motion and defer ruling on a summary judgment motion “depends, in part, on what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.” Contractors Ass’n of E. Pa., Inc. v. City of Phila., 945 F.2d 1260, 1266 (3d Cir.1991) (internal citations and quotations omitted). Courts will deny litigants the opportunity to conduct additional discovery where “the discovery sought appears irrelevant to the issues to be adjudicated or if it is merely cumulative” or the party seeking to delay summary judgment relies only on “a ‘hope’ or ‘hunch’ that evidence creating an issue of fact will emerge at trial.” 10B Wright & Miller, Federal Practice and Procedure 3rd Ed. § 2741. III. DISCUSSION A. Whether the Treasury’s Motion for Summary Judgment Is Premature Mr. Boandl argues the defendant’s motion is premature, claiming essentially that the administrative record created as a result of Mr. Boandl’s" }, { "docid": "19095890", "title": "", "text": "because the Parties have not conducted any discovery. \"The Second Circuit has held that summary judgment should only be granted if after discovery, the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof” and, thus, \"[s]ummary judgment is strongly disfavored prior to the parties having had an adequate opportunity for discovery.” Indergit v. Rite Aid Corp., No. 08-CV-9361, 2010 WL 1327242, at *3 (S.D.N.Y. Mar. 31, 2010) (alterations and internal quotation marks omitted); see also Hellstrom v. U.S. Dep't of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000) (\"Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.”). As further explained below, however, because the Court has considered whether it has subject matter jurisdiction over Plaintiffs’ claims under Rule 12(b)(1), the Court will still consider the Eulau Affidavit and the 2010-2011 IEP submitted by Defendants to the extent that these documents relate to the subject matter jurisdiction of the Court. See Picture Patents, LLC v. Aeropostale, Inc., No. 07-CV-5567, 788 F.Supp.2d 127, 134 (S.D.N.Y.2011) (“Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdic lion exists.”). The Court will not consider these documents for any other purpose. . A \"12:1:2” class is not explained in the Amended Complaint, but the Court assumes it refers to a class with a ratio of one teacher and two aides for every twelve students. . An IEP is the IDEA’s primary mechanism for guaranteeing students with disabilities access to a \"free appropriate public education.” See 20 U.S.C. §§ 1400(d)(1)(A), 1414(d). An IEP is a \"written statement” setting forth: (1) \"the child's present levels of academic achievement and functional performance”; (2) \"measurable annual goals,” both \"academic and functional”; (3) “how the child’s progress ... will be measured”; (4) \"the special education and related services and supplementary aids and services” to be provided the child;" }, { "docid": "4145128", "title": "", "text": "genuine issue of material fact but rather may discharge its burden by showing the court that there is an absence of evidence to support the nonmoving party’s case.” Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed.Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). A summary judgment motion is properly granted against a party who fails to make a showing sufficient to establish the existence of an essential element to that party’s case and for which that party bears the burden of proof at trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The Supreme Court has instructed that “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. A non-movant will not defeat a motion for summary judgment “unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249, 106 S.Ct. 2505 (citation omitted). “A nonmoving party’s failure of proof concerning the existence of an element essential to its case on which the nonmoving party will bear the burden of proof at trial necessarily renders all other facts immaterial and entitles the moving party to summary judgment as a matter of law.” Dairyland, 16 F.3d at 1202 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548). III. Standard of Review for Requests for Discovery Under RCFC 56(d) RCFC 56(d) governs discovery afforded to a party opposing a summary judgment motion: When Facts Are Unavailable to the Non-movant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. RCFC 56(d). The nonmovant will generally be given a chance to conduct discovery that is reasonably directed" }, { "docid": "19536339", "title": "", "text": "court must defer ruling on a summary-judgment motion if the party opposing the motion \"shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.\" Fed. R. Civ. P. 56(d). The rule \"mandates that summary judgment be [postponed] when the nonmovant 'has not had the opportunity to discover information that is essential to his opposition.' \" Pisano v. Strach , 743 F.3d 927, 931 (4th Cir. 2014) (quoting Ingle ex rel. Estate of Ingle v. Yelton , 439 F.3d 191, 195 (4th Cir. 2006) ). However, a court may deny a Rule 56(d) motion \"when the information sought would not by itself create a genuine issue of material fact sufficient for the nonmovant to survive summary judgment.\" Id. \"We review a district court's denial of a Rule 56(d) motion for abuse of discretion.\" Id. In this case, the district court did not abuse its discretion by denying Plaintiffs' Rule 56(d) motion for two reasons. First, Plaintiffs had a reasonable opportunity to depose UTC and Honeywell regarding the nature of their relationship with VMS and ISI. Plaintiffs' Rule 56(d) declaration acknowledged that they had deposed both defendants at an earlier stage of discovery. Moreover, Plaintiffs had three months between the district court's order lifting the stay in the consolidated case and the deadline for their opposition to UTC's and Honeywell's summary-judgment motions. This gap provided Plaintiffs with a reasonable amount of time to schedule the depositions they claim were essential to their responses. Plaintiffs do not offer a persuasive explanation for failing to do so. Instead, Plaintiffs argue that they were not obligated to schedule any depositions during the relevant three-month period because, according to the district court's latest scheduling order, discovery would not close until April 28, 2017-several months after their opposition was due. This argument misunderstands the Rule 56(d) inquiry. The Federal Rules of Civil Procedure allow a party to move for summary judgment before the end of discovery. Fed. R. Civ. P. 56(b) (\"[A] party may file a motion for summary judgment at any time until 30 days after the close" }, { "docid": "22538630", "title": "", "text": "has the burden of proof.” Hellstrom v. United States Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000) (internal quotation marks omitted) (alterations in original). “Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.” Id.; accord Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir.1989) (“Under Rule 56(f), summary judgment may be inappropriate where the party opposing it shows ... that he cannot at the time present facts essential to justify his opposition. The nonmov-ing party should not be ‘railroaded’ into his offer of proof in opposition to summary judgment. The nonmoving party must have had the opportunity to discover information that is essential to his opposition to the motion for summary judgment.” (internal quotations and citations omitted)). The district court concluded that no discovery was necessary in this case because “[t]he parties’ dispute is over whether they needed to do more before they could use their letterhead under the law, and I’m satisfied from the cases cited by the defendants in their briefs that these lawyers did what was expected of them under the law for them to use their letterhead to send out the notices.” The district court held that the fact that Mr. Abramson had “checked that his client, Lord & Taylor’s, last records showed that [the] debt was still outstanding” satisfied defendants’ obligations. Given the very limited nature of the material Mr. Abramson claimed to have reviewed, however, the district court’s conclusion could only be based on the fact that Lord & Taylor had reported the debt for collection to W & A with an outstanding balance and Lord & Taylor’s “synopsis” of its “recent” customer service notes indicated that plaintiff had offered a reduced payment, which had been refused. While plaintiff asks us to declare a minimum standard requiring attorneys to review a copy of the contract, a credit report, and a full payment history or statement of account to satisfy Clomon’s requirement of meaningful attorney involvement, we decline to do so on the" }, { "docid": "19095889", "title": "", "text": "the instant motion to a Rule 56 motion \"so that the parties’ discussions with the Court may become part of the record.” (Reply Aff. ¶ 3.) Defendants acknowledge that there is no transcript of the conference. (Id. n. 1.) In support of their motion. Defendants submitted evidence outside the pleadings— namely, an Affidavit from the Director of Special Education for the District, Eric Eulau (the “Eulau Affidavit”) and an Individualized Education Program (\"IEP”) for Daniel for the 2010-2011 school year, dated June 9, 2010 (the \"2010-2011 IEP”). The Court declines to consider a motion for summary judgment at this stage, and instead will treat the current motion as either a Rule 12(b)(1) motion because the Court’s subject matter jurisdiction has been implicated — and a challenge to the Court's subject matter jurisdiction may be raised at any point in the proceeding, including sua sponte by the Court, see, e.g., McGinty v. New York, 251 F.3d 84, 90 (2d Cir.2001) — or as a Rule 12(c) motion for judgment on the pleadings. Summary judgment is inappropriate because the Parties have not conducted any discovery. \"The Second Circuit has held that summary judgment should only be granted if after discovery, the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof” and, thus, \"[s]ummary judgment is strongly disfavored prior to the parties having had an adequate opportunity for discovery.” Indergit v. Rite Aid Corp., No. 08-CV-9361, 2010 WL 1327242, at *3 (S.D.N.Y. Mar. 31, 2010) (alterations and internal quotation marks omitted); see also Hellstrom v. U.S. Dep't of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000) (\"Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.”). As further explained below, however, because the Court has considered whether it has subject matter jurisdiction over Plaintiffs’ claims under Rule 12(b)(1), the Court will still consider the Eulau Affidavit and the 2010-2011 IEP submitted by Defendants to the extent that these documents relate to the" }, { "docid": "5080783", "title": "", "text": "attached as exhibits, and mat ters about which the Court may take judicial notice. EEOC v. St Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C.Cir.1997). B. Rule 56 Under Federal Rule of Civil Procedure 56(c), “[s]ummary judgment is proper 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.’ ” George v. Leavitt, 407 F.3d 405, 411 (D.C.Cir.2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (citations omitted). A material fact is one that is capable of affecting the outcome of the litigation, and a genuine issue of material fact exists if “a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The party moving for summary judgment may not rely solely on conclusory allegations but must set forth facts that are significantly probative. Id. at 249-50, 106 S.Ct. 2505 (citations omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge....” Id. at 255, 106 S.Ct. 2505. Thus, when considering a motion for summary judgment, a court must “view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in [her] favor.” Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1031 (D.C.Cir.2007) (internal quotation and citation omitted); see also Greene v. Amritsar Auto Serv. Co., 206 F.Supp.2d 4, 7 (D.D.C.2002). The District of Columbia Circuit has cautioned against granting summary judgment before the plaintiff has been afforded the opportunity to take discovery. Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1045 (D.C.Cir.2008). Should the plaintiff state with “sufficient particularity ... why discovery [is] necessary,” it is within the court’s discretion to allow discovery to be taken before ruling on a motion for summary judgment. Id. (internal quotation and citation omitted). Rule 56(f) provides: If a party opposing the motion [for summary judgment] shows by affidavit that, for specified reasons, it cannot present" }, { "docid": "22732253", "title": "", "text": "265 (1986); Temkin v. Frederick County Comm’rs, 945 F.2d 716, 719 (4th Cir.1991), cert. denied, 502 U.S. 1095, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992). “[S]ummary judgment must be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250 n. 5, 106 S.Ct. at 2511 n. 5. Evans first argues not only that the principle is a hard and fast rule, but also that her lack of discovery placed extra burdens on TAS to prove that there was no issue for trial. However, she has provided no legal support for her contentions. We have held that the nonmoving party cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery or moved for a continuance to permit discovery before the district court ruled. See Nguyen, 44 F.3d at 242. Federal Rule of Civil Procedure 56(f) permits a court to deny summary judgment or to order a continuance if the nonmovant shows through affidavits that it could not properly oppose a motion for summary judgment without a chance to conduct discovery. We, like other reviewing courts, place great weight on the Rule 56(f) affidavit, believing that “[a] party may not simply assert in its brief that discovery was necessary and thereby overturn summary judgment when it failed to comply with the requirement of Rule 56(f) to set out reasons for the need for discovery in an affidavit.” Nguyen, 44 F.3d at 242 (citing Hayes v. North State Law Enforcement Officers Ass’n, 10 F.3d 207, 215 (4th Cir.1993)); see also Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 972 n. 3 (4th Cir.1990) (if plaintiffs arguing that summary judgment was premature because they had inadequate time for discovery were “genuinely concerned,” then they should have sought relief under Rule 56(f)). The Second Circuit Court of Appeals has similarly explained that “[a] reference to Rule 56(f) and to the need for additional discovery in a memorandum of law in opposition" } ]

[ { "docid": "11089742", "title": "", "text": "occurrences; and (B) any question of law or fact common to all defendants will arise in the action. Fed.R.Civ.P. 20(a)(2) (emphasis added); see also Nassau County Ass’n of Ins. Agents, Inc. v. Aetna Life & Cas. Co., 497 F.2d 1151, 1154 (2d Cir.1974) (“Rule 20(a) provides that ‘[a]ll persons ... may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.’ ” (quoting Fed.R.Civ.P. 20(a)(2))). As is clear from the plain language of Rule 20(a)(2), both criteria must be met for joinder to be proper. See McNaughton v. Merck & Co., No. 04-CV-8297, 2004 WL 5180726, at *2 (S.D.N.Y. Dec. 17, 2004) (holding that joinder of defendants was improper where only one of the two preconditions of Rule 20(a)(2) was met); Cline v. 1-888-Plumbing Group, Inc., No. 99-CV-1401, 2000 WL 342689, at *1 (S.D.N.Y. Mar. 30, 2000) (“Pursuant to the express language of Rule 20(a), there are two prerequisites to permissive joinder.”); Moore’s Federal Practice § 21.02[1] (3d ed. 2009) (“Failure to satisfy either prerequisite for permissive joinder constitutes misjoinder of parties”). “ ‘The purpose of Rule 20 is to promote trial convenience and to expedite the resolution of disputes, thereby preventing multiple lawsuits.’ ” Kehr ex rel. Kehr v. Yamaha Motor Corp., U.S.A., 596 F.Supp.2d 821, 826 (S.D.N.Y.2008) (quoting Blesedell v. Mobil Oil Co., 708 F.Supp. 1408, 1421 (S.D.N.Y.1989)). In assessing whether the requirements of Rule 20(a)(2) are met, courts must accept the factual allegations in a plaintiffs complaint as true. See Viada v. Osaka Health Spa, Inc., 235 F.R.D. 55, 61 (S.D.N.Y.2006) (“[W]he[n] there has not been a trial and no facts developed during the pretrial discovery phase of the litigation have been presented to the Court for analysis ..., the Court is required to accept the [factual] allegations made by the plaintiffs in their complaint and assume that all the" } ]

[ { "docid": "7288769", "title": "", "text": "Before a requester can bring a FOIA suit in District Court, a requestor must first exhaust all available administrative remedies. See Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61 (D.C.Cir.1990). A requestor must demonstrate that he complied with the agency’s filing procedures and the agency’s internal appeals process. See Hidalgo, 344 F.3d at 1259. 3. Joinder Pursuant to Rule 20(a), parties may join in one action “if they assert any right to relief jointly, severally, or ... arising out of the same transaction, occurrence, or series of transactions or occurrences and any question of law or fact common to all plaintiffs will arise in the action.” See Fed.R.Civ.P. 20(a). A plaintiff satisfies Rule 20(a) only if both requirements are present in the plaintiffs motion. See Spaeth v. Mich. State Univ. Coll, of Law, 845 F.Supp.2d 48, 53 (D.D.C.2012). Actions “arising out of the same transaction, occurrence, or series of transactions” must be logically related claims. See Disparte v. Corp. Exec. Bd., 223 F.R.D. 7, 10 (D.D.C.2004) (citing Moore v. N.Y. Cotton Exch., 270 U.S. 593, 610, 46 S.Ct. 367, 70 L.Ed. 750 (1926)). Courts have discretion to permit or deny a joinder to “promote convenience and expedite resolution,” but may not join claims that do not arise from the same transaction or share a common question of law or fact. See Montgomery v. STG Int’l Inc., 532 F.Supp.2d 29, 35 (D.D.C.2008). B. Plaintiffs Pleadings 1. Leave to Amend Complaint Sua Sponte This Court sua sponte orders the Plaintiff to provide a more definite statement of his claims and grants the Plaintiff leave to amend his complaint because the Plaintiffs three complaints are vague and do not include sufficient facts for this Court to determine the relief that can be granted. Pursuant to Rule 8(a) and Rule 12(b)(6), a plaintiffs complaint does not need to include “detailed factual allegations,” but must include “factual enhancement[s]” of the grounds that entitle the plaintiff for relief. See Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955. Moreover, before seeking judicial review, a FOIA re questor must demonstrate that he pursued all" }, { "docid": "12566401", "title": "", "text": "Metals operated in Barberton, Ohio, and that he has been a lifelong resident of Summit County, Ohio. Given those facts presented by Saul Senser, it cannot be questioned that each prong of the three-part test has been met. That is not surprising, given that jurisdiction is determined on a statewide, rather than on a district-wide basis. American Home Assur. Co. v. Glovegold, Ltd., 153 F.R.D. 695, 698 (M.D.Fla.1994). Accordingly, the Court overrules the branch of Saul Senser’s Motion to Dismiss (Doc. # 11), which is predicated upon the assertion that this Court cannot exercise personal jurisdiction over him. As indicated, Saul Senser also argues that the claims against him must be dismissed from the lawsuit, because he was misjoined. Permissive joinder is governed by Rule 20(a) of the Federal Rules of Civil Procedure, which provides: (a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons (and any vessel, cargo or other property subject to admiralty process in rem) may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities. The available remedies for misjoined parties are set forth in Rule 21 of the Federal Rules of Civil Procedure, which provides: Misjoinder and Nonr-Joinder of Parties Misjoinder of parties is not ground for dismissal of an" }, { "docid": "19120948", "title": "", "text": "2123, 115 L.Ed.2d 27 (1991). Rule 20, Federal Rules of Civil Procedure, provides: (a) Persons Who May Join or Be Joined. (1) Plaintiffs. Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action. (2) Defendants. Persons — as well as a vessel, cargo, or other property subject to admiralty process in rem — may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. Fed.R.Civ.P. 20. While the misjoinder of parties is normally not a ground for dismissing an action, broad discretion is granted to, “at anytime, on just terms, add or drop a party.” Fed.R.Civ.P. 21. Claims may also be severed. Id. Although joinder is “strongly encouraged” and the rules are construed generously towards “entertaining the broadest possible scope of action consistent with fairness of the parties,” United Mine Workers v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), district courts enjoy equally broad discretion to sever parties based on misjoinder, Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1323 (11th Cir.2000), overruled on other grounds Manders v. Lee, 338 F.3d 1304 (11th Cir.2003); see Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir.2002) (“The district court has broad discretion to join parties or not and that decision will not be overturned as long as it falls within the district court’s range of choices.”). Plaintiffs Fail to Satisfy the Requirements for Permissive Joinder under Rule 20 Rule 20(a) permits joinder of claims arising out of “the same transaction or occurrence, or series of transactions or occurrences.” Alexander, 207 F.3d at 1303. Plaintiffs" }, { "docid": "18071773", "title": "", "text": "the same transactions or occurrences, and do not raise common questions of fact or law. Nationstar also suggests that Dren-nan and the Nevada class would be better served by continuing this action in a Nevada forum. The Court has dismissed but will consider a request to amend with respect to several of Plaintiffs’ claims integral to determining the interconnection between Al-hassid and Drennan’s claims. Most germane, Plaintiffs will be granted leave to amend their claim for civil conspiracy. To the extent Plaintiffs can properly state a claim for civil conspiracy, they may be able to establish that their claims arise from the same transactions or occurrences — especially in light of the Eleventh Circuit’s flexible, logical relationship test. Alexander, 207 F.3d at 1323 (the term “transaction is a word of flexible meaning” that “may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship” (citations omitted)); Barber v. America’s Wholesale Lender, 289 F.R.D. 364, 367 (M.D.Fla.2013) (“logical relationship test” for same transaction or occurrence met where “the same operative facts serve as the basis of both claims”) (quoting Republic Health Corp. v. Lifemark Hosps. of Fla., 755 F.2d 1453, 1455 (11th Cir.1985)). Nationstar will be permitted to resubmit its request to sever if and when Plaintiffs amend their complaint. The Court’s disinclination to rule at this juncture is reinforced by the implication that in this context, the Motion to Sever may act to circumvent proper consideration of a motion for class certification under Rule 23. The Court notes that class certification and joinder involve different inquiries. See Fisher, 245 F.R.D. at 542 (“the Rule 20 inquiry is distinct from that under Rule 23”); David v. Signal Int’l LLC, 2013 WL 2631427, at *1 (E.D.La. June 11, 2013) (citing Applewhite v. Reichhold Chemicals, Inc., 67 F.3d 571, 574 (5th Cir.1995)). Nationstar argues in part that Alhassid’s and Drennan’s claims cannot arise out of the same transaction or occurrence because each loan made or serviced by a Defendant is itself a separate, individual transaction and involves a separate series of occurrences." }, { "docid": "4728956", "title": "", "text": "and Sanctions The Defendants assert that because the claims made against each defendant are separate and distinct from claims made against other defendants, the plaintiff has violated the “same transaction” test which forms the basis for permissive joinder un der Federal Rule of Civil Procedure 20(a). Accordingly, the Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 41(b) or in the alternative, severance pursuant to Federal Rule of Civil Procedure 21. Bankruptcy Rule 7020 incorporates Federal Rule of Civil Procedure 20, which provides: (a) Permissive joinder.... [A]ll persons ... may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities. The Rule is to be construed liberally in order to promote trial convenience and to expedite the final determination of disputes, thereby preventing multiple lawsuits. League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914 (9th Cir.1977); Mosley v. The General Motors Corp., 497 F.2d 1330 (8th Cir.1974). As stated by the Supreme Court in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966): Under the rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged. Rule 20 contains a two-part requirement for joinder: (1) the right to relief asserted against each defendant must relate to or arise out of the same transaction or series of transactions, and (2) some question of law or fact common to all parties will arise in the action. The Complaint undoubtedly alleges" }, { "docid": "21727333", "title": "", "text": "the underlying tort liability and damages issues.” Waters v. USF & G, 328 Md. 700, 616 A.2d 884, 892 (1992). Therefore, under Maryland law, plaintiff is entitled to proceed simultaneously with her claim for breach of contract against State Farm and the tort claim against Gravett. Defendant State Farm’s motion to dismiss is DENIED. B. Motion to Sever Defendant Gravett has moved to sever the tort claim from the contract claim, pursuant to Rule 21 of the Federal Rules of Civil Procedure, arguing that the parties are misjoined. Gravett submits that the tort claim and the contract claim have no questions of law or fact in common because the claims do not arise out of the same transaction or occurrence. Hanna contends that the tort and contract claims are properly before the court and should not be severed. A district court possesses broad discretion in ruling on a requested severance under Rule 21. See Saval v. BL, Ltd., 710 F.2d 1027, 1031-32 (4th Cir.1983); 7 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1689 (2nd ed.1986). While Rule 21 is silent on the standard applicable for determining misjoinder, courts have uniformly held that parties are misjoined when they fail to satisfy either of the preconditions for permissive joinder of parties set forth in Rule 20(a). See, e.g., Olan Mills, Inc., of Tennessee v. Enterprise Pub. Company, 210 F.2d 895, 896 (5th Cir.1954) (noting that Rule 20 assists districts courts in determining misjoinder of parties); Epstein v. Kemper Ins. Companies, 210 F.Supp.2d 308, 320 (S.D.N.Y.2002) (same); Carbon Fuel Co. v. USX Corp., 867 F.Supp. 414 (S.D.W.Va.1994) (same). Rule 20(a) provides, in part, that a plaintiff may join defendants in one action “if there is asserted against them ... any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.” The Supreme Court has said that Rule 20(a) must be interpreted to allow for the “broadest possible scope" }, { "docid": "18071774", "title": "", "text": "met where “the same operative facts serve as the basis of both claims”) (quoting Republic Health Corp. v. Lifemark Hosps. of Fla., 755 F.2d 1453, 1455 (11th Cir.1985)). Nationstar will be permitted to resubmit its request to sever if and when Plaintiffs amend their complaint. The Court’s disinclination to rule at this juncture is reinforced by the implication that in this context, the Motion to Sever may act to circumvent proper consideration of a motion for class certification under Rule 23. The Court notes that class certification and joinder involve different inquiries. See Fisher, 245 F.R.D. at 542 (“the Rule 20 inquiry is distinct from that under Rule 23”); David v. Signal Int’l LLC, 2013 WL 2631427, at *1 (E.D.La. June 11, 2013) (citing Applewhite v. Reichhold Chemicals, Inc., 67 F.3d 571, 574 (5th Cir.1995)). Nationstar argues in part that Alhassid’s and Drennan’s claims cannot arise out of the same transaction or occurrence because each loan made or serviced by a Defendant is itself a separate, individual transaction and involves a separate series of occurrences. Alhassid’s reverse mortgage and Drennan’s standard mortgage may prove sufficiently dissimilar to warrant severance, and the Court will consider that argument if and when properly presented. But broadly stated, Nations-tar’s argument would undermine any attempt to certify a class in this case. Finally, Nationstar avers that issues of prejudice and convenience mitigate in favor of severing Drennan and the purported Nevada class. However, the Court notes that Nationstar’s argument challenges venue without providing any argument in favor of transferring Drennan’s claims to Nevada. III. CONCLUSION For the forgoing reasons and as detailed above, it is hereby ORDERED AND ADJUDGED that 1. Bank of America’s Motion to Dismiss, ECF No. [91], is GRANTED, as follows: a. As to Bank of America, Counts I, II, III, V, VI, VII and VIII of Plaintiffs’ Second Amended Complaint, ECF No. [73], are DISMISSED with prejudice. b. As to Bank of America, Counts IV and IX of Plaintiffs’ Second Amended Complaint, ECF No. [73], are DISMISSED without prejudice. 2. Nationstar’s Motion to Dismiss, ECF No. [87], is GRANTED IN PART" }, { "docid": "17183024", "title": "", "text": "the order date on that document comes from Gilbert’s. While not passing judgment on the veracity of the verbal order date as indicated in the records, the Court finds that the documents fail to meet the stringent burden imposed on defendants to show that plaintiffs allegations “are so clearly false and fictitious that no factual basis exists for an honest belief on the part of plaintiff that there is liability.” In light of the inadmissibility of the Pollard statements and the supporting documents’ failure conclusively to show that Janes was solely responsible for Cothern’s Rezulin prescription and that he faded to discontinue the prescription prior to March 28, defendants have failed to show that plaintiffs allegations against Gilbert’s are without basis in fact. Accordingly, the joinder of Gilbert’s was appropriate. B. Misjoinder of Plaintiffs Defendants in Polehouse and in Bell argue in the alternative that plaintiffs with valid claims against diverse defendants were misjoined with plaintiffs who do not assert valid claims against diverse defendants. Misjoinder of parties occurs when a party fails to satisfy the conditions for permissive joinder under Rule 20(a). Rule 20(a) provides in relevant part: “All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all these persons will arise in the action.” 1. Polehouse In Polehouse, plaintiffs alleging claims against the drug manufacturers alone join plaintiff Dupree, who alleges also the claims against Gilbert’s, the home health care provider. While Dupree’s additional claims against the health care provider for negligent administration of Rezulin after its withdrawal from the market do not arise out of the same transaction or occurrence as the claims against the drug manufacturers for negligent marketing and distribution and failure to warn, this alone does not establish misjoinder. A plaintiff need only assert “any” claim arising out of the same transaction or occurrence or series of transactions or occurrences as the other plaintiffs" }, { "docid": "22440436", "title": "", "text": "of a complaint, an amended complaint, a RICO case statement and an amended RICO case statement, the plaintiffs have been unable to identify any rate, loan or borrower to support their claim that they were charged interest based on a false or artificial prime rate. At the September 5, 1986 hearing, plaintiffs still were unable to identify this information. Plaintiffs have had sufficient opportunity to plead the factual basis for believing a fraud occurred as required by Rule 9(b), but have failed to do so. Thus, Counts I and V must be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 9(b) and 12(b)(6). District Court Order, J.A. at tab 3, p. 8. Final judgment was entered under Rule 54(b), and Michaels now appeals. Defendant Ameritrust moved for dismissal pursuant to Rule 21 based on a misjoin-der of parties. Finding that Michaels’ remaining federal claims against the two defendants did not arise “out of the same transaction or occurrence or series of transactions or occurrences,” the court dismissed Michaels’ claims against Ameritrust without prejudice. District Court Order, J.A. at tab 4. Michaels has also appealed this ruling. B. The Abbe Case On September 14,1984, four and one-half months after filing the class complaint in Michaels, Michaels’ counsel filed a separate class complaint on behalf of plaintiffs-appellants Lowell Abbe, Barbara Abbe, and all other persons similarly situated. The complaint named as defendants Bank One (also named as a defendant in Michaels ), Centran Bank of Ohio (also named as a defendant in Michaels), Harter Bank and Trust Company, and thirty unnamed “John Does.” The complaint contained the same RICO and state fraud claims as in Michaels, in addition to a Sherman Act antitrust claim, pursuant to 15 U.S.C. § 1, et seq. The Abbe antitrust claim alleged that the defendant banks and certain unnamed co-conspirators engaged in a conspiracy to fix interest rates in violation of the Sherman Act. The Abbe plaintiffs also served discovery requests upon all of the defendants. The defendants moved to dismiss the claims under Rules 9(b), 11, 12(b)(1), and" }, { "docid": "18060985", "title": "", "text": "F.3d at 1139 n. 1 (declining to consider the CAFA exceptions sua sponte). The exception provides that district courts “shall decline to exercise jurisdiction” in certain circumstances. 28 U.S.C. § 1332(d)(4). But “implicit” in the statutory text “is that the court has jurisdiction, ’ but the court ... must decline to exercise such jurisdiction.” Serrano, 478 F.3d at 1022. Ac cordingly, we decline to consider Plaintiffs’ “local controversy” argument because Plaintiffs failed to raise it to the district court. II. Joinder In its Memorandum and Order remanding this case to state court, the district court denied Defendants’ motion to dismiss for misjoinder as moot. Nevertheless, the court determined that remand to state court was necessary because the case did not involve common questions of law or fact. We agree that the First Amended Complaint does not present such common questions, and we therefore remand to the district court with instructions to dismiss without prejudice the claims of all Plaintiffs but the first named Plaintiff, Carla Visendi. Under Federal Rule of Civil Procedure 20(a), permissive joinder of plaintiffs “is proper if (1) the plaintiffs assert[ ] a right to relief arising out of the same transaction and occurrence and (2) some question of law or fact common to all the plaintiffs will arise in the action.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir.2000) (citing Fed.R.Civ.P. 20(a)) (emphasis omitted). Further, “[e]ven once these requirements are met, a district court must examine whether permissive joinder would ‘comport with the principles of fundamental fairness’ or would result in prejudice to either side.” Id. (quoting Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir.1980)). The First Amended Complaint satisfies neither of Rule 20(a)’s requirements. To meet the first requirement, Plaintiffs’ claims must arise from “the same transaction, occurrence, or series of transactions or occurrences.... ” Fed. R.Civ.P. 20(a)(1)(A). By its terms, this provision requires factual similarity in the allegations supporting Plaintiffs’ claims. Such factual similarity is absent here. This case involves over 100 distinct loan transactions with many, different lenders. These loans were secured by" }, { "docid": "22440449", "title": "", "text": "notice of the claim to defendants, and was amply sufficient to survive a Rule 12(b)(6) motion. We therefore reverse the district court on this second issue. C. Joinder of the Ameritrust Defendants On October 1, 1986, the district court found that the claims against the Ameritrust defendants did not arise from the same “transaction, occurrence or series of transactions or occurrences” as required by Fed.R.Civ.P. 20(a). The district court concluded that the Ameritrust defendants were improperly joined, and it dropped them as parties without prejudice as permitted under Fed.R.Civ.P. 21. Rule 20(a) provides: All persons ... may be joined in one action as defendants if there is asserted against them any right to relief jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. As Judge Krenzler found, the loan transaction forming the basis for the claims against the Ameritrust defendants was wholly unrelated to other matters at issue in this case. The one Ameritrust-related loan made to Michaels Building Company has no relation to the loans made by the other defendants. The various transactions, as Judge Krenzler wrote, “involve different banks, different contracts and different terms.” Moreover, the Ameritrust loan document contains an entirely different representation as to its interest rate than the loan documents of the other defendants. Variation in loan policies is a further reason to disallow joinder. E.g., Cohen v. Dist. of Columbia National Bank, 59 F.R.D. 84, 88 (D.D.C.1972). The manner in which a trial court handles misjoinder lies within that court’s sound discretion. See, e.g., 3A J. Moore and J. Lucas, Moore’s Federal Practice 1121.03 at 21-26 (1986); Fed.R.Civ.P. 21. As this court has held, dismissal of claims against misjoined parties is appropriate. Michigan Savings & Loan League v. Francis, 688 F.2d 967, 962 (6th Cir.1982). We conclude that the dismissal of the Ameritrust defendants was not an abuse of discretion. III. CONCLUSION For the foregoing reasons, we REVERSE the" }, { "docid": "19120945", "title": "", "text": "ORDER JAMES D. WHITTEMORE, District Judge. ON JANUARY 17, 2013, Plaintiffs were directed to show cause in writing why all claims other than those asserted by Sean and Kristina Barber against America’s Wholesale Lender should not be severed and dismissed without prejudice (Dkt. 105). Plaintiffs responded to the Order by arguing that their claims satisfy the permissive joinder requirements under Rule 20, Federal Rules of Civil Procedure, both for transactional relatedness and commonality (Dkt. 109). Because Plaintiffs have failed to establish that their claims arise out of the same transaction, occurrence, or series of transactions or occurrences as required to meet the requirements for permissive joinder under Rule 20(a), Plaintiffs’ claims are severed and dismissed without prejudice as to all Defendants other than America’s Wholesale Lender. Moreover, even if Plaintiffs could satisfy the requirements for permissive joinder under Rule 20, severance of their claims would still be appropriate under Rule 21 based on concerns of fairness, prejudice, expedience, and cost. Background: Unrelated Plaintiffs, Defendants, Claims and Defenses The First Amended Complaint purports to assert claims on behalf of at least 18 different borrowers against at least 9 different lenders arising out of 15 separate mortgages entered into with 10 different lenders. See First Amended Complaint, Table of Loans (Dkt. 57-1). In addition, the First Amended Complaint names as Defendants various fictitious individuals and entities that “may have liability to Plaintiffs in this matter.” See, e.g., id. at ¶ 35 (“John Does 1-X, ABC Corporations 1-X, XYZ Partnerships 1-X, and 123 Trusts 1-X”). Plaintiffs claim that they mistakenly believed that they were entering into a traditional borrower/lender relationship with Defendants when in actuality the loans were “conduit” loans designed and intended to be pooled into mortgage-backed investment vehicles known as Real Estate Mortgage Investment Conduits (“REMIC”). Plaintiffs contend that they were harmed when their the loans were sold to third-party investors as part of the securitization process creating an REMIC. Specifically, Plaintiffs allege: The Plaintiffs have been and continue to be significantly harmed by not having a borrower/lender relationship with a lender who has an economic interest in their Loan and" }, { "docid": "12372002", "title": "", "text": "adjudication and the need to protect diversity jurisdiction from manipulation.” Id. at 922; see also Juliano v. Toyota Motor Sales, U.S.A., Inc., 20 F.Supp.2d 573, 575 (S.D.N.Y.1998); Mammano v. American Honda Motor Co., 941 F.Supp. 323, 324-25 (W.D.N.Y.1996). Rule 20 provides, in relevant part: All persons ... may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.... Fed.R.Civ.P. 20(a). Plaintiffs’ First Amended Complaint did not state a cause of action against the New Defendants; it sought simply a declaratory judgment against Pate. Thus, there would be no basis for joinder under the First Amended Complaint because no “right to relief’ could be asserted against the New Defendants. Moreover, a declaratory judgment as to the rights of the New Defendants in the properties would not state a cause of action, as such rights have already been adjudicated in the 1998 New York Action. However, the Second Amended Complaint, which Plaintiffs now seek to file, joins new claims (for conspiracy) as well as the New Defendants. The conspiracy claims allege questions of law and fact common to Pate and the New Defendants and arise out of the same series of transactions or occurrences. Thus, joinder would be appropriate under Rule 20. It is also necessary to consider whether “permitting joinder [under § 1447(e) ] will comport with principles of fundamental fairness.” Wyant, 881 F.Supp. at 923. The following factors are generally considered: “(1) any delay, and the reasons for the delay, in seeking to amend; (2) any resulting prejudice to the defendant; (3) the likelihood of multiple litigation; and (4) the plaintiffs’ motivation in moving to amend.” Id. (citing Dinardi v. Ethicon, Inc., 145 F.R.D. 294, 297 (N.D.N.Y.1993); Gursky v. Northwestern Mut. Life Ins. Co., 139 F.R.D. 279, 282 (E.D.N.Y.1991)). Plaintiffs maintain that the reason for the delay in seeking to amend is that" }, { "docid": "18071771", "title": "", "text": "on misjoinder. See Alexander v. Fulton County, Ga., 207 F.3d 1303, 1323 (11th Cir.2000), O’Neil, 709 F.2d at 367; Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 522 (5th Cir.2010). “Some courts characterize this discretion as ‘virtually unfettered.’ ” Hartley, 2010 WL 1187880 at *4. Severance may be appropriate as long as the claims are “discrete and separate.” Hofmann v. EMI Resorts, Inc., 2010 WL 9034908, at *1 (S.D.Fla. July 21, 2010) (citing Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1016 (7th Cir.2000)). Because Rule 21 does not provide a standard for misjoinder, courts look to Rule 20, which governs joinder, for guidance on severance. See Travelers Indem. Co. of Connecticut v. Attorneys Title Ins. Fund, Inc., 2013 WL 6768216, at *1 (M.D.Fla. Dec. 19, 2013) (“Misjoinder occurs when parties fail to satisfy Federal Rule of Civil Procedure 20(a).”); Nelson v. Blue Eyed Holdings, Inc., 2013 WL 6238056, at *4 (S.D.Fla. Dec. 3, 2013); Hofmann, 2010 WL 9034908 at *1; Branham v. YBE Oxford, LLC, 2013 WL 120648, at *1 (N.DAla. Jan. 4, 2013). Permissive join-der under Rule 20 requires “1) a right to relief arising out of the same transaction or occurrence, or series of transactions or occurrences, and 2) some question of law or fact common to all persons seeking to be joined.” Alexander, 207 F.3d at 1323 (citing Fed.R.Civ.P. 20(a)). Among the factors considered in determining whether to effectuate severance are “whether the claims arise from the same transaction or occurrence, whether they present some common question of law or fact, whether severance would facilitate settlement or judicial economy, [ ] the relative prejudice to each side if the motion is granted or denied,” “ ‘the interest of avoiding prejudice and delay,’ ... ‘safeguarding principles of fundamental fairnéss,’ and “whether different witnesses and documentary proof would be required for plaintiffs’ claims.’ ” Fisher v. Ciba Specialty Chemicals Corp., 245 F.R.D. 539, 541 (S.D.Ala.2007); Hof mann, 2010 WL 9034908, at *1 (quoting Acevedo, 600 F.3d at 521-22). Nationstar argues that Drennan, and by implication the Nevada class, is misjoined because Plaintiffs claims do not arise from" }, { "docid": "18071772", "title": "", "text": "2013). Permissive join-der under Rule 20 requires “1) a right to relief arising out of the same transaction or occurrence, or series of transactions or occurrences, and 2) some question of law or fact common to all persons seeking to be joined.” Alexander, 207 F.3d at 1323 (citing Fed.R.Civ.P. 20(a)). Among the factors considered in determining whether to effectuate severance are “whether the claims arise from the same transaction or occurrence, whether they present some common question of law or fact, whether severance would facilitate settlement or judicial economy, [ ] the relative prejudice to each side if the motion is granted or denied,” “ ‘the interest of avoiding prejudice and delay,’ ... ‘safeguarding principles of fundamental fairnéss,’ and “whether different witnesses and documentary proof would be required for plaintiffs’ claims.’ ” Fisher v. Ciba Specialty Chemicals Corp., 245 F.R.D. 539, 541 (S.D.Ala.2007); Hof mann, 2010 WL 9034908, at *1 (quoting Acevedo, 600 F.3d at 521-22). Nationstar argues that Drennan, and by implication the Nevada class, is misjoined because Plaintiffs claims do not arise from the same transactions or occurrences, and do not raise common questions of fact or law. Nationstar also suggests that Dren-nan and the Nevada class would be better served by continuing this action in a Nevada forum. The Court has dismissed but will consider a request to amend with respect to several of Plaintiffs’ claims integral to determining the interconnection between Al-hassid and Drennan’s claims. Most germane, Plaintiffs will be granted leave to amend their claim for civil conspiracy. To the extent Plaintiffs can properly state a claim for civil conspiracy, they may be able to establish that their claims arise from the same transactions or occurrences — especially in light of the Eleventh Circuit’s flexible, logical relationship test. Alexander, 207 F.3d at 1323 (the term “transaction is a word of flexible meaning” that “may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship” (citations omitted)); Barber v. America’s Wholesale Lender, 289 F.R.D. 364, 367 (M.D.Fla.2013) (“logical relationship test” for same transaction or occurrence" }, { "docid": "14377225", "title": "", "text": "v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir.2006) (citation omitted). The complaint must also plead facts that give rise to a strong inference of fraudulent intent. S.Q.K.F.C., Inc. v. Bell Atl. TriCon Leasing Corp., 84 F.3d 629, 634 (2d Cir. 1996). III. Discussion A. Misjoinder 1. Standard Federal Rule of Civil Procedure 20(a) permits the joinder of multiple plaintiffs if: “(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.” Fed.R.Civ.P. 20(a)(1). Both of these elements are required for a proper joinder of plaintiffs. Deskovic v. City of Peekskill, 673 F.Supp.2d 154, 159 (S.D.N.Y. 2009); Moore’s Federal Practice § 21.02[1] (3d ed. 2009) (“Failure to satisfy either prerequisite for permissive joinder constitutes misjoinder of parties.”). In addition to these two requirements, courts in this District consider the following additional factors on a motion to sever: (1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present some common questions of law or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether prejudice would be avoided if severance were granted; and (5) whether different witnesses and documentary proof are required for the separate claims. Erausquin v. Notz, Stucki Mgmt. (Bermuda) Ltd., 806 F.Supp.2d 712, 720 (S.D.N.Y.2011) (quoting In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 214 F.R.D. 152, 154-55 (S.D.N.Y.2003) (Pollack, J.)); accord Crown Cork & Seal Co., Inc. Master Ret. Trust v. Credit Suisse First Boston Corp., 288 F.R.D. 331, 332-33 (S.D.N.Y.2013). “If a court concludes that defendants have been improperly joined under Rule 20, it has broad discretion under Rule 21 to sever parties or claims from the action.” Deskovic, 673 F.Supp.2d at 159-60. See Fed.R.Civ.P. 21 (“On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against" }, { "docid": "17694459", "title": "", "text": "in her hometown of Gardner, Kansas through the mail. Plaintiff also alleges that all Defendants had reason to know that such devices are used to illicitly decrypt satellite programming and that Defendants used these devices to display DIRECTV programming without authorization from DIRECTV. III. DISCUSSION As noted above, Defendant Admire has moved for dismissal of the entire case claiming that Plaintiff has improperly joined Defendants under Fed.R.Civ.P. 20. In the alternative, Defendant Admire moves for dismissal of Count Three of Plaintiffs Complaint arguing that there is no civil remedy for violations of 18 U.S.C. § 2512. Defendant Admire also argues that Counts Two and Three of Plaintiffs Complaint should be dismissed because Plaintiff failed to allege the facts necessary to show malice as is required by 18 U.S.C. §§ 2511 and 2512. A. Improper Joinder Defendant Admire argues that the entire case against her should be dismissed because Defendants in this case have been improperly joined under Fed. R.Civ.P. 20(a). Rule 20(a) permits joinder of defendants if the plaintiff asserts rights to relief that 1) arise “out of the same transaction, occurrence, or series of transactions or occurrences” and 2) have common questions of fact or law. Rule 20(a) is to be construed broadly and “joinder of claims, parties, and remedies is strongly encouraged.” Biglow v. Boeing Co., 201 F.R.D. 519, 520 (D.Kan.2001) (quoting United Mine Workers of Am. v. Gibbs, 388 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). Misjoinder is not grounds for dismissal. Fed.R.Civ.P. 21. Severance is the proper remedy for misjoinder and “[w]hether to sever claims under Rule 21 is within the court’s discretion.” Biglow, 201 F.R.D. at 519. Defendant Admire’s motion to dismiss for improper joinder is denied. To the extent that Defendant Admire seeks severance of Plaintiffs claims, the court declines to grant the request at this time. The court is not prepared to hold that the claims in this case did not arise out of the same “transaction, occurrence, or series of transactions or occurrences.” Fed.R.Civ.P. 20. The case appears to involve common questions of law as required by Rule 20(a)." }, { "docid": "22440435", "title": "", "text": "received loans during the period in question from any defendant bank at less than the bank’s prevailing prime rate. The defendants renewed their motions to dismiss under Rules 9(b) and 12(b)(6). At its second hearing on defendants’ motions to dismiss, the court asked Michaels’ counsel what facts the plaintiffs had “to tell the defendants that there may be some people out there that got a different treatment than [Michaels].” Counsel responded: “To be very blunt, as your Honor recognized, we cannot put ourselves at this juncture into the banks and have their loan records. We have had no borrowers come to us and tell us ‘Guess what. We are borrowing below the recorded prime rate.’ ” J.A. at tab 26, p. 7. In its September 15, 1986 Order, the court dismissed Michaels’ claims with prejudice, finding that: [T]he plaintiffs have failed to meet the specificity requirement of Rule 9(b) as to Counts I and V, which alleged misrepresentations concerning the “prime rate” used to calculate the interest rate on plaintiffs’ loans. Even after the filing of a complaint, an amended complaint, a RICO case statement and an amended RICO case statement, the plaintiffs have been unable to identify any rate, loan or borrower to support their claim that they were charged interest based on a false or artificial prime rate. At the September 5, 1986 hearing, plaintiffs still were unable to identify this information. Plaintiffs have had sufficient opportunity to plead the factual basis for believing a fraud occurred as required by Rule 9(b), but have failed to do so. Thus, Counts I and V must be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 9(b) and 12(b)(6). District Court Order, J.A. at tab 3, p. 8. Final judgment was entered under Rule 54(b), and Michaels now appeals. Defendant Ameritrust moved for dismissal pursuant to Rule 21 based on a misjoin-der of parties. Finding that Michaels’ remaining federal claims against the two defendants did not arise “out of the same transaction or occurrence or series of transactions or occurrences,” the court dismissed" }, { "docid": "19120947", "title": "", "text": "who has full authority to amend, modify or alter the terms of the Loan because they would like to modify the terms of their Loan and have learned that they have no lender with whom to negotiate. Id. at ¶ 61. As a result, Plaintiffs “seek[ ] to rescind and/or void the loan agreements based on mistake and missing [sic] of the minds by the parties at contract formation, applying the foundational Peerless [sic] principle to the modern world of home mortgage financing.” Id. at ¶ 7. Applicable Law District courts have “unquestionable” authority to control their own dockets. Canada v. Mathews, 449 F.2d 253, 255 (5th Cir.1971) (citing Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). This authority includes “broad discretion in deciding how best to manage the cases before them,” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir.1997), and should be exercised “so as to achieve the orderly and expeditious disposition of cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). Rule 20, Federal Rules of Civil Procedure, provides: (a) Persons Who May Join or Be Joined. (1) Plaintiffs. Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action. (2) Defendants. Persons — as well as a vessel, cargo, or other property subject to admiralty process in rem — may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. Fed.R.Civ.P. 20. While the misjoinder of parties is normally not a ground for dismissing an action, broad discretion" }, { "docid": "1423200", "title": "", "text": "Defendants’ contentions on this matter are frivolous. The complaint makes abundantly clear that Michael, Robert, and James are plaintiffs in their own right and that their mother merely is acting as their representative since, as minors, they lack capacity to sue. In light of the allegations of injury to Michael, Robert, and James, defendants do not, and could not, contend that these minors lack standing. There are no jurisdictional problems presented by their claims. The only real question, therefore, is whether suit by these children through a representative is procedurally proper. Federal Rule of Civil Procedure 17(c), which specifically contemplates such a procedure, answers that question affirmatively. B. Joinder Defendants contend that there has been an improper joinder of parties under Federal Rule of Civil Procedure 20(a), which provides: “All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons . may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.” Defendants argue that plaintiffs’ claims against them do not “aris[e] out of the same transaction, occurrence, or series of transactions or occurrences” because they stem from events spanning a fourteen or fifteen month period. The joinder provisions of the Federal Rules are, very liberal. As the Supreme Court noted in United Mine Workers v. Gibbs, 383 U.S." } ]

[ { "docid": "4243688", "title": "", "text": "motion to reconsider and a notice of appeal. After the parties filed their appellate briefs, this court appointed counsel for Curtis. ANALYSIS Curtis challenges the district court’s ruling that Bembenek enjoys absolute witness immunity from liability under § 1983 for his testimony at the pretrial proceedings. He contends' that the district court erred in dismissing his complaint because this circuit has not extended absolute immunity to police officers who commit perjury during testimony at adversarial pretrial proceedings. He also argues that the district court erred by failing to ensure that he, a prisoner proceeding pro se, was notified of the consequences of failing to respond to the motion to dismiss. Under Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), he contends, he was entitled to such notice. In considering these issues, we accept all well-pleaded facts as true, draw all inferences in favor of the plaintiff, and resolve all ambiguities in favor of the plaintiff. Canedy v. Boardman, 16 F.3d 183, 188 (7th Cir.1994). Moreover, in reviewing a pro se complaint, we must employ standards less stringent than if the complaint had been drafted by counsel. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972); Del Raine v. Williford, 32 F.3d 1024, 1050 (7th Cir.1994). I. Absolute Immunity for Witnesses at Adversarial Pretrial Proceedings We begin our analysis of the applicability of absolute immunity under § 1983 with the Supreme Court’s opinion in Briscoe v. La-Hue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). A. Briscoe v. LaHue and Its Progeny In Briscoe, the Court held that a police officer had absolute immunity from suit under § 1983 for giving perjured testimony at the defendant’s criminal trial. The Court rooted its holding in the absolute immunity granted at common law to witnesses who participated in judicial proceedings. At common law, the Court observed, courts were concerned that a witness who was apprehensive about subsequent damages liability might be reluctant to testify, or if the witness did testify, might distort his or her testimony because of fear of liability. Id. at 333, 103" } ]

[ { "docid": "22136696", "title": "", "text": "and psychiatrists, who have also received absolute judicial immunity. For example, in McArdle v. Tronetti, 961 F.2d 1083 (3d Cir.1992), we held that a prison doctor who conducted a psychiatric exam on an inmate at the request of the court had absolute judicial and witness immuni ty. Specifically, we reasoned that the psychiatrist’s conduct in completing the exam and furnishing a written report to the court at the request was entitled to absolute judicial immunity because the psychiatrist was “functioning as an arm of the court.” Id. at 1085. We also held that the psychiatrist’s report and recommendation to the court constituted testimony protected by absolute witness immunity. Similarly, in Moses v. Parwatikar, 813 F.2d 891 (8th Cir.1987), the Eighth Circuit granted absolute judicial and witness immunity to a psychiatrist appointed by the court to conduct a competency evaluation. The psychiatrist’s appointed duties consisted of examining the plaintiff and reporting his findings to the court. The court held that these duties were “functions essential to the judicial process.” Id. at 892. It went on to state that the psychiatrist’s function was analogous to a witness in a judicial proceeding. Accordingly, the court granted absolute immunity to ensure that the “ ‘paths which lead to the ascertainment of truth ... be left as free and unobstructed as possible.’ ” Id. (quoting Briscoe v. LaHue, 460 U.S. 325, 333, 103 S.Ct. 1108, 1114, 75 L.Ed.2d 96 (1983)). Finally, in Meyers v. Contra Costa County Dep’t of Social Servs., 812 F.2d 1154 (9th Cir.1987), the Ninth Circuit granted absolute judicial immunity to counselors employed by a family court. The counselors’ duties included mediation of custody and visitation disputes, investigating matters pertaining to such disputes, and providing reports to the court. The Ninth Circuit affirmed the District Court’s holding that the counselors were “officers of the court,” reasoning that they were “performing a judicial function at the direction of the court.” Id. at 1159. Given the nature of their duties, the counselors were granted “quasi-judicial” immunity. These cases are factually identical to ours and support our conclusion that Long and McHugh are entitled to" }, { "docid": "23522794", "title": "", "text": "(10th Cir.1997). We begin our analysis by reviewing the protections provided to witnesses who testify at trial. We then apply the Pickering balancing to the defendant Mr. Henry. Next, we consider whether the Pickering approach should be applied to defendants (like Mr. Turner, Ms. Dodd, and Mr. Atwood) who are not the plaintiffs employer. Finally, we address the question of qualified immunity. A. Protection of Witnesses’ Testimony In order to encourage truthful and uninhibited testimony, the law has long afforded certain protections to witnesses. Under the common law, witnesses were immune from suits for damages for testimony in judicial proceedings. See Briscoe v. LaHue, 460 U.S. 325, 331, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). The grant of immunity sought to forestall two kinds of self-censorship. First, absent immunity, witnesses might be reluctant to come forward. See id. at 333, 103 S.Ct. 1108 (citing Henderson v. Broomhead, 157 Eng. Rep. 964, 968 (Ex. 1859)). Second, witnesses might distort their testimony out of fear of subsequent liability. The grant of immunity thus promoted full disclosure of the relevant facts: Even within the constraints of the witness’s oath there may be various ways to give an account or to state an opinion. These alternatives may be more or less detailed and may differ in emphasis and certainty. A witness who knows that he might be forced to defend a subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence. But the truth finding process is better served if the witness’ testimony is submitted 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. Briscoe, 460 U.S. at 333-34, 103 S.Ct. 1108 (internal citations and quotations omitted). Considering the common law tradition and Congressional intent, the Supreme Court has extended witness immunity to § 1983 actions. See id. at 345-46, 103 S.Ct. 1108 (noting the “indispensable”" }, { "docid": "22590923", "title": "", "text": "Cir.1988). Judicial and quasi-judicial officers also enjoy absolute immunity. Imbler, 424 U.S. at 420-21, 96 S.Ct. 984. Likewise, prosecutors enjoy absolute immunity for the initiation and pursuit of criminal prosecution. Id. at 431, 96 S.Ct. 984. A prosecutor is absolutely immune from suit for malicious prosecution. Malley, 475 U.S. at 342-43, 106 S.Ct. 1092. Prosecutors also enjoy absolute immunity for appearances before the court, such as examining a witness and presenting evidence in support of a search warrant during a probable cause hearing. Burns v. Reed, 500 U.S. 478, 490-92, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). A prosecutor enjoys absolute immunity from allegations stemming from the prosecutor’s function as advocate. Buckley, 509 U.S. at 273, 113 S.Ct. 2606. Such absolute immunity extends to a prosecutor’s “acts undertaken ... in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606; Mastroianni v. Bowers, 173 F.3d 1363 (11th Cir.1999). Police officers enjoy the same absolute immunity as lay witnesses for their testimony at trial, Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), or in front of the grand jury. Kelly v. Curtis, 21 F.3d 1544, 1553 (11th Cir.1994); Strength v. Hubert, 854 F.2d 421 (11th Cir.1988). The penalty for false testimony under such circumstances is the same for any witness, that is, a potential prosecution for perjury. Briscoe, 460 U.S. at 342, 103 S.Ct. 1108. Although absolutely immune for actions taken as an advocate, the prosecutor has only qualified immunity when performing a function that is not associated with his role as an advocate for the state. Buckley, 509 U.S. at 269-70, 113 S.Ct. 2606; Mastroianni, 173 F.3d at 1363. Additionally, prosecutors have not enjoyed absolute immunity for giving certain legal advice to police during an investigation. Burns, 500 U.S. at 496, 111 S.Ct. 1934. Prosecutors also have not been given absolute immunity for pre-indictment endeavors seeking to determine whether a boot print at the scene of a crime was made by a" }, { "docid": "4243687", "title": "", "text": "scene. On July 14, 1992, Curtis, then an Illinois prisoner on mandatory supervised release, filed a pro se complaint in the district court seeking compensatory and punitive damages under 42 U.S.C. § 1983 against Bembenek. Officer Bembenek moved to dismiss the complaint, arguing that as a duly appointed government law enforcement officer, he was entitled to absolute immunity under Briscoe v. LaHue, 460 U.S. 326, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Curtis did not respond to the motion to dismiss. The district court granted the motion to dismiss without leave to amend. Relying on Briscoe, Judge Lindberg observed that “[t]he Supreme Court has made clear that governmental witnesses testifying in any court action are entitled to absolute, immunity from § 1983 liability.” Curtis v. Bembenek, No. 92 C 3733 (N.D.Ill. Sept. 22, 1992). The judge added that “[sjince the only conduct referred to in Curtis’s complaint involves testimony in a state criminal proceeding, the court finds that defendant is entitled to absolute immunity.” Id. On October 6, 1992, Curtis, acting pro se, filed a motion to reconsider and a notice of appeal. After the parties filed their appellate briefs, this court appointed counsel for Curtis. ANALYSIS Curtis challenges the district court’s ruling that Bembenek enjoys absolute witness immunity from liability under § 1983 for his testimony at the pretrial proceedings. He contends' that the district court erred in dismissing his complaint because this circuit has not extended absolute immunity to police officers who commit perjury during testimony at adversarial pretrial proceedings. He also argues that the district court erred by failing to ensure that he, a prisoner proceeding pro se, was notified of the consequences of failing to respond to the motion to dismiss. Under Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), he contends, he was entitled to such notice. In considering these issues, we accept all well-pleaded facts as true, draw all inferences in favor of the plaintiff, and resolve all ambiguities in favor of the plaintiff. Canedy v. Boardman, 16 F.3d 183, 188 (7th Cir.1994). Moreover, in reviewing a pro se complaint, we must employ standards" }, { "docid": "22136697", "title": "", "text": "state that the psychiatrist’s function was analogous to a witness in a judicial proceeding. Accordingly, the court granted absolute immunity to ensure that the “ ‘paths which lead to the ascertainment of truth ... be left as free and unobstructed as possible.’ ” Id. (quoting Briscoe v. LaHue, 460 U.S. 325, 333, 103 S.Ct. 1108, 1114, 75 L.Ed.2d 96 (1983)). Finally, in Meyers v. Contra Costa County Dep’t of Social Servs., 812 F.2d 1154 (9th Cir.1987), the Ninth Circuit granted absolute judicial immunity to counselors employed by a family court. The counselors’ duties included mediation of custody and visitation disputes, investigating matters pertaining to such disputes, and providing reports to the court. The Ninth Circuit affirmed the District Court’s holding that the counselors were “officers of the court,” reasoning that they were “performing a judicial function at the direction of the court.” Id. at 1159. Given the nature of their duties, the counselors were granted “quasi-judicial” immunity. These cases are factually identical to ours and support our conclusion that Long and McHugh are entitled to judicial rather than prosecutorial immunity. Accordingly, we affirm the District Court’s grant of summary judgment motion in favor of Long and McHugh dismissing Hughes’s §§ 1983 & 1985 claims on the basis of judicial immunity. III. Hughes next contends that the Pennsylvania Supreme Court’s holding in LLMD of Michigan, Inc. v. Jacksoro-Cross Co., 559 Pa. 297, 740 A.2d 186 (1999), which was decided several days after the District Court’s ruling, suggests that Long and McHugh are not entitled to witness immunity for his state law claims. He asks us to review their immunity claims in light of LLMD, which holds that witness immunity does not bar professional malpractice actions against private experts who negligently formulate their opinions. See LLMD, 559 Pa. at 306, 740 A.2d at 191. Based on LLMD, he asks us to predict that the Pennsylvania Supreme Court will extend the exception to court-appointed experts and causes of action outside of negligence. Given the unique and essential role of court-appointed witnesses, we believe that, if faced with the issue, the Pennsylvania Supreme Court" }, { "docid": "23343006", "title": "", "text": "this Circuit whether a police officer’s pretrial suppression hearing testimony is absolutely immune from § 1983 perjury claims. See Foster v. City of Lake Jackson, Tex., 813 F.Supp. 1262, 1266 (S.D.Tex.1993) (stating that this Circuit has not extended the privilege of absolute immunity to “witnesses who testify in pretrial proceedings”), rev’d on other grounds, 28 F.3d 425 (5th Cir.1994). The Court in Briscoe, in determining that § 1983 did not abrogate common law immunity, asserted that “[a] witness [at trial] who knows that he might be forced to defend a subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence.” 460 U.S. at 333, 103 S.Ct. at 1114, The result of such shaded testimony would be an obstruction of “the paths which lead to the ascertainment of truth.” See id. at 333, 103 S.Ct. at 1114 (quoting Calkins v. Sumner, 13 Wis. 193, 197 (I860)). The reason for granting absolute immunity to a witness against claims arising from testimony “applies with equal force in both trial and [adversarial] pretrial settings.” Holt v. Castaneda, 832 F.2d 123, 125 (9th Cir.1987), cert. denied, 485 U.S. 979, 108 S.Ct. 1275, 99 L.Ed.2d 486 (1988). “Whether testifying at trial or in a pretrial proceeding, a witness who knows he may be subjected to costly and time-consuming civil litigation for offering testimony that he is unable to substantiate may consciously or otherwise shade his testimony in such a way as to limit potential liability.” Id. Because of such natural tendencies to shade testimony, witness immunity “is afforded to encourage complete disclosure in judicial proceedings as a means for ascertaining the truth, and, because of its common law roots, is necessarily limited to witnesses in judge-supervised trials.” Krohn v. United States, 742 F.2d 24, 31 (1st Cir.1984). “The thought is that witnesses should be encouraged to tell all they know without fearing reprisal, because the tools of the judicial process — rules of evidence, cross-examination, the fact-finder, and the" }, { "docid": "23539394", "title": "", "text": "need not address here whether, as private social workers under contract with the government, they are entitled to raise an absolute immunity defense. We do observe, however, that Stevens and Flinker, as private actors, are entitled, under common law, to absolute immunity for all testimony given to a court or a grand jury. See Briscoe v. LaHue, 460 U.S. 325, 334, 103 S.Ct. 1108, 1115, 75 L.Ed.2d 96 (1983). We also observe that it is well established that public officers possess absolute immunity for activities that are intimately associated with the judicial process. See Burns v. Reed, — U.S. -, 111 S.Ct, 1934, 114 L.Ed.2d 547 (1991) (prosecutors have absolute immunity when conducting probable cause hearing); Briscoe, 460 U.S. at 345-46, 103 S.Ct. at 1120-21 (public officials retain absolute immunity when testifying in court); Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (administrative officers retain absolute immunity when acting as hearing examiner or in role analogous to prosecutor). Absolute immunity depends not on the titles of officials but their functions. See Burns, — U.S. at-, 111 S.Ct. at 1939; Butz, 438 U.S. at 512, 98 S.Ct. at 2913. ^Further, lower courts have provided social workers and other public officials with absolute immunity for actions involving the initiation and prosecution of child custody or dependency proceedings. See Millspaugh v. County Dep’t of Public Welfare, 937 F.2d 1172, 1176 (7th Cir.) (social worker immune from suit for failure to furnish information to the court and pursuing litigation after parents were clearly entitled to custody), cert. denied, — U.S. -, 112 S.Ct. 638, 116 L.Ed.2d 656 (1991); Stem v. Ahearn, 908 F.2d at 6 (social worker possesses absolute immunity when testifying at a child-custody hearing); Meyers v. Contra Costa County Dep’t of Social Serv., 812 F.2d 1154, 1156-57 (9th Cir.) (social workers immune as quasi-prosecutorial officers when initiating child dependency proceedings), cert. denied, 484 U.S. 829, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987); Malachowski v. City of Keene, 787 F.2d 704, 712-13 (1st Cir.) (juvenile officer is immune from damages when initiating juvenile delinquency proceeding), cert. denied, 479" }, { "docid": "2355261", "title": "", "text": "only defendant named whose affidavit was actually presented at Burns’ bail revocation hearing was Carole Warwick. The district court granted summary judgment against Burns on his action against Warwick, holding that Warwick was entitled to absolute immunity for statements made to the court in her affidavit. Burns contends on appeal that in so doing the district court applied the principle of absolute witness immunity too broadly. Under the Supreme Court’s decision in Briscoe v. Lahue, 460 U.S. 325, 345-46, 103 S.Ct. 1108, 1120-21, 75 L.Ed.2d 96 (1983), as interpreted by this court in Holt v. Castaneda, 832 F.2d 123, 127 (9th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 1275, 99 L.Ed.2d 486 (1988), witnesses are absolutely immune from suits for damages under 42 U.S.C. § 1983 for testimony given at trial, or for testimony given during adversarial pretrial proceedings. In Briscoe, convicted criminal defendants brought suit against police officers, claiming that the officers had given perjured testimony during the defendant’s criminal trials. The Supreme Court held that witnesses, including government officials, are absolutely immune from damages liability under section 1983 based on their testimony. Briscoe, 460 U.S. at 326, 103 S.Ct. at 1110. The Court first concluded that witnesses were absolutely immune from suits based on testimony given in a trial at common law. Id. at 330-34, 103 S.Ct. at 1113-15. The court then determined that the importance of obtaining the full participation of witnesses at trial, unfettered by any fear of liability, dictated that absolute immunity should similarly extend under 42 U.S.C. § 1983 to government officials who testified as witnesses at trial. Id. at 342-46, 103 S.Ct. at 1119-21. In this circuit’s leading post-Briscoe decision, Holt v. Castaneda, 832 F.2d 123, 127 (9th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 1275, 99 L.Ed.2d 486 (1988), we extended the Briscoe analysis to provide absolute immunity for a police witness at adversarial pretrial proceedings. We reviewed the decisions of other circuits in which absolute witness immunity has been extended to various nontrial proceedings, see Holt at 125-26, and concluded that there was no meaningful distinction between the considerations" }, { "docid": "7894389", "title": "", "text": "complaint, the December 5 hearing was not before the Court of Common Pleas but before a mental health review officer. The officer recommended commitment, and the court adopted this recommendation. See App. at 95-96, 139. . The Supreme Court has not addressed this issue directly, Briscoe v. LaHue, 460 U.S. 325, 329 n. 5, 103 S.Ct. 1108, 1112 n. 5, 75 L.Ed.2d 96 (1983), and there continues to be a split in the circuits. See, e.g., Daloia v. Rose, 849 F.2d 74 (2nd Cir.), cert. denied, 488 U.S. 898, 109 S.Ct. 242, 102 L.Ed.2d 231 (1988) (witness immunity applies to pretrial adversarial proceedings); Holt v. Castaneda, 832 F.2d 123 (9th Cir.1987), cert. denied, 485 U.S. 979, 108 S.Ct. 1275, 99 L.Ed.2d 486 (1988) (same); Anthony v. Baker, 767 F.2d 657, 663 (10th Cir.1985) (no witness immunity for grand jury testimony). The Supreme Court has held recently, however, that prosecutors are absolutely immune from § 1983 liability for their participation in probable cause hearings. Burns v. Reed, — U.S.-, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), infra pp. 1086-87. . With respect to Reilly, see paragraphs 13 and 28. App. at 4, 8. With respect to Tronetti, see paragraphs 13 and 19. App. at 4, 6. . The Pennsylvania statute which provides for such petitions, 50 Pa.Stat.Ann. § 7304(a), does not provide any limitations on who may file them. . The decision in Meyers v. Contra Costa County Dept. of Soc. Servs., 812 F.2d 1154, 1156 (9th Cir.), cert. denied, 484 U.S. 829, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987), in which the court found that a social worker was protected by prosecutorial immunity for initiating dependency proceedings, is readily distinguishable. In that case, the defendant’s duties as a social worker included the conduct for which Section 1983 liability was alleged, i.e., the initiation and prosecution of dependency petitions in cases of suspected child neglect and abuse. . The district court opined that McArdle might have an Eighth Amendment claim based on the facts alleged, but the court held that the complaint did not assert any such claim. We agree with" }, { "docid": "195169", "title": "", "text": "U.S. 1036, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983) (“It is clear that at common law a witness was absolutely protected from any suit arising from his testimony in a judicial proceeding, ... even if his testimony was perjured and malicious.”); Briscoe v. LaHue, 663 F.2d 713, 718 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (“Under the English common law, witnesses have long enjoyed absolute immunity from civil liability arising from their testimony.”); Conley v. Office of the Public Defender, 653 F.2d 1241, 1242 (8th Cir.1981) (“Witnesses are absolutely immune from section 1983 remedy actions arising from their testimony in judicial proceedings.”); Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir.1978) (“[T]hose who testify in the course of judicial proceedings have long enjoyed absolute immunity from civil suits based on their words, whether perjurious or not.”); Briggs, 569 F.2d at 51 (Wilkey, J., dissenting) (the common law rule of absolute immunity “means that a witness in judicial proceedings cannot be held liable in civil damages for injury that ensues from any relevant testimony”). We also note that many courts, including the Supreme Court itself, have understood Briscoe to apply beyond the narrow confines of criminal trials to judicial proceedings generally. See, e.g., Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985) (citing Briscoe for the proposition that “witnesses, including po lice officers, who testify in judicial proceedings” enjoy absolute immunity, because they are integral parts of the judicial process); Myers v. Morris, 810 F.2d 1437, 1466 (8th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 97, 98 L.Ed.2d 58 (“the immunity [discussed in Briscoe ] extends beyond oral testimony”; it covers “reports and recommendations to the family court”); Tripati v. INS, 784 F.2d 345, 348 (10th Cir.1986) (citing Briscoe in holding that federal probation officers were absolutely immune from liability for damages stemming from allegedly false statements in a pretrial bond report and in a presentence report); Macko v. Byron, 760 F.2d 95, 97 (6th Cir.1985) (citing Briscoe in holding that witnesses who testified before grand jury were absolutely" }, { "docid": "5383693", "title": "", "text": "the elements of any claim. Federal pleading, of course, does not require that .the formal elements of a cause of action be set forth. A motion to dismiss should not be granted unless the court concludes that “no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). In deciding the motion, we must not only assume that the alleged facts are true, we must draw every reasonable inference in the plaintiffs favor. Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir.1992). Nevertheless, “[T]he complaint must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Sutliff v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir.1984) (quoting 5 Wright and Miller, Federal Practice and Procedure § 1216 at 121-23 (1969)). Defendants are correct that Patterson has not alleged a claim for forgery under Illinois law. Patterson alleges that Leyden stated at one point that he signed a police report, but later stated that he didn’t know whether he signed it personally, admitting that sometimes his- partner “forges” his signature. One person may authorize another to sign a document on his behalf. If his partner signed Leyden’s name with his approval, the only reasonable inference here, it would not be forgery. Patterson also cannot recover from either defendant for perjury. Policemen, like other witnesses, have absolute immunity from liability for testimony given in a criminal proceeding. Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), held that witnesses have absolute immunity for giving perjured testimony at a criminal trial, and the Seventh Circuit has extended absolute immunity to witnesses testifying at pretrial hearings. Curtis v. Bembenek, 48 F.3d 281 (7th Cir.1995). We now come to Patterson’s central" }, { "docid": "19215994", "title": "", "text": "Larry Mayes cannot serve as the basis for Mayes’ due process claim that he was denied a fair trial, and that the Indiana Tort Claims Act bars the state law claims made against Myszak in his individual capacity. Mayes responds to each argument in turn, with the exception of the Fourth Amendment claim. Accordingly, the Court grants summary judgment in favor of Myszak on Mayes’ Fourth Amendment claim in Count I of the Amended Complaint. The Court turns to each of Mys-zak’s defenses in turn. 1. Absolute Immunity “[W]hen a witness commits perjury, he or she is granted absolute immunity from civil liability.” Manning v. Miller, 355 F.3d 1028, 1034 (7th Cir.2004) (citing Briscoe v. LaHue, 460 U.S. 325, 331-32, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); see also Newsome v. McCabe, 319 F.3d 301, 304 (7th Cir.2003)). The Seventh Circuit extended this absolute immunity to deposition testimony. Nwoke v. Palmer, 116 Fed.Appx. 761, 763 (7th Cir.2004). However, the fact that a defendant has perjured himself does not immunize him for other actions or inactions he has taken in relation to the case. See Ienco v. City of Chi., 286 F.3d 994 (7th Cir.2002). Mayes’ claims are not simply based on Myszak’s 1982 deposition testimony and his alleged perjury but also that Myszak failed to disclose the hypnosis at the time of the hypnosis, at the time of the lineup, or in the years following the deposition and Mayes’ conviction. Myszak agrees in his reply brief that he is not entitled to absolute immunity. %. Qualified Immunity The qualified immunity inquiry is twofold. First, a court must determine whether, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the [defendant’s] conduct violated a constitutional right?” Crull v. Sunderman, 384 F.3d 453, 460 (7th Cir.2004) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Second, the court must determine if the right was clearly established at the time of the violation. Id. The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant a fair trial." }, { "docid": "19884759", "title": "", "text": "filed this appeal twelve days after the final judgment was entered, and it is thus timely. See Fed. R.App. P. 4(a)(1). II. Absolute Immunity The Supreme Court has extended absolute immunity to police officers testifying at judicial proceedings on the ground that this type of immunity existed at common law for citizen-witnesses. It reasoned that without such immunity, “[a] witness’s apprehension of subsequent damages liability might induce ... self-censorship,” either by making witnesses reluctant to come forward in the first place or by distorting their testimony. Briscoe v. LaHue, 460 U.S. 325, 333, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Such self-censorship may “deprive the finder of fact of candid, objective, and undistorted evidence.” Id. Yet, the Court also acknowledged the danger that a police officer or other witness may provide purposefully false testimony and escape liability. Id. at 345, 103 S.Ct. 1108. To balance against this risk, the Court emphasized the presence of “truthfinding safeguards of the judicial process,” id., and rejected the contention that absolute immunity should only apply to private witnesses because “functional categories, not ... the status of the defendant” control the immunity analysis, id. at 342, 103 S.Ct. 1108. Because absolute immunity is “justified and defined by the functions it protects and serves, not by the person to whom it attaches,” Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988), in Austern v. Chicago Board of Options Exchange, Inc., 898 F.2d 882 (2d Cir.1990), we extended the common law protection of immunity accorded to judges to arbitrators in contractually-agreed upon arbitration proceedings. We reasoned: We are persuaded by the[ ] policy concerns [of the need for independent judgment, protection from undue influence, and protection from reprisals by dissatisfied litigants,] and agree that the nature of the function performed by arbitrators necessitates protection analogous to that traditionally accorded to judges. Furthermore, we note that individuals cannot be expected to volunteer to arbitrate disputes if they can be caught up in the struggle between the litigants and saddled with the burdens of defending a lawsuit. Accordingly, we hold that arbitrators in contractually" }, { "docid": "195165", "title": "", "text": "City of Los Angeles, 754 F.2d 1396, 1399 (9th Cir.1985), aff'd, 476 U.S. 488, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986). The issue of immunity is a question of law and is also reviewable de novo. See Crooks v. Maynard, 820 F.2d 329, 331 (9th Cir.1987), cert. granted — U.S. -, 108 S.Ct. 744, — L.Ed.2d — (judicial immunity). We will uphold an order dismissing a pro se complaint for failure to state a claim under 42 U.S.C. § 1983 (1982) only if, construing the complaint liberally, it is beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980); Jones v. Community Redevelopment Agency, 733 F.2d 646, 648-49 (9th Cir.1984). iv. The starting point for our analysis is the Supreme Court’s opinion in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). The Court there held that a convicted defendant could not state a claim for damages under 42 U.S.C. § 1983 (1982) against a police officer who had allegedly given perjurious testimony during the trial on the issue of guilt. The Court based its ruling on the absolute immunity accorded at common law to witnesses in judicial proceedings. Section 1983, the Court explained, did not abrogate common law immunity. Moreover, “the common law provided absolute immunity from subsequent damages liability for all persons— governmental or otherwise — who were integral parts of the judicial process.” 460 U.S. at 335, 103 S.Ct. at 1115-16. Accordingly, police officer witnesses enjoy the same absolute immunity from liability under section 1983 that private witnesses enjoy. The matter before this court concerns a police officer who allegedly gave perjurious testimony during pretrial proceedings. We see no principled basis for distinguishing between the pretrial proceedings and the trial on the merits in determining whether absolute immunity should be granted to a police officer witness. Immunity analysis rests on “functional categories.” Id. at 342, 103 S.Ct at 1119. The functions of a witness are" }, { "docid": "20154147", "title": "", "text": "in as a prosecutor upon her assuming the six month, full-time pro bono rotation.” Id. at 3; see also id. at 18-23. The Supreme Court has held that prosecutors enjoy absolute immunity from civil suits based on their conduct in initiating and pursuing a criminal prosecution. See Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (holding that prosecutors are absolutely immune for activities “intimately associated with the judicial process” such as initiating and pursuing a criminal prosecution). This absolute immunity extends to agency officials performing functions analogous to those of a prosecutor. Butz v. Economou, 438 U.S. 478, 515, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (observing that “agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts”); see also Briscoe v. LaHue, 460 U.S. 325, 335-36, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (holding that all persons who are integral parts of the judicial process, such as witnesses, judges and prosecutors, are entitled to absolute immunity). Indeed, this Circuit has held that absolute immunity protects government attorneys for their conduct in initiating and prosecuting civil child neglect cases. Gray v. Poole, 243 F.3d 572, 577 (D.C.Cir.2001) (noting that in so holding, this Circuit joined with every Circuit to have addressed the issue); accord Snell v. Tunnell, 920 F.2d 673, 692-94 (10th Cir.1990) (holding that social services attorneys were entitled to absolute immunity for actions related to the prosecution of child neglect and delinquency proceedings); Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 397 n. 11 (4th Cir.1990) (same); see also Meyers v. Contra Costa County Dep’t of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir.1987) (holding that “social workers are entitled to absolute immunity in performing quasi-prosecutorial functions connected with the initiation and pursuit of child dependency proceedings”). This Circuit’s decision in Gray arose out of child neglect proceedings initiated by the District against the plaintiff, who had served as the custodian of his minor brother. Gray, 243 F.3d at 574. The plaintiff commenced an action under 42 U.S.C." }, { "docid": "19884758", "title": "", "text": "of redress.” Id. at 540. This appeal followed. DISCUSSION As in the district court, Rolon principally contends on appeal that Henneman is not entitled to absolute immunity and that he asserted a valid § 1983 claim against Moskowitz. We disagree. I. Jurisdiction [2] We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291. Contrary to Henneman’s assertions, Rolon’s appeal of the district court’s dismissal of the claim against him was timely. The date triggering the start of Rolon’s thirty days to file a notice of appeal ran from the day, August 4, 2006, the district court entered its final judgment disposing of the entire case — when it entered Moskowitz’s judgment on the pleadings. See Citizens Accord, Inc. v. Town of Rochester, 235 F.3d 126, 128 (2d Cir.2000) (holding that a “final” judgment is one that conclusively determines the pending claims of all parties to the litigation, unless the district court directs entry of a final judgment as to the dismissed claims or parties pursuant to Federal Rule of Civil Procedure 54(b)). Rolon filed this appeal twelve days after the final judgment was entered, and it is thus timely. See Fed. R.App. P. 4(a)(1). II. Absolute Immunity The Supreme Court has extended absolute immunity to police officers testifying at judicial proceedings on the ground that this type of immunity existed at common law for citizen-witnesses. It reasoned that without such immunity, “[a] witness’s apprehension of subsequent damages liability might induce ... self-censorship,” either by making witnesses reluctant to come forward in the first place or by distorting their testimony. Briscoe v. LaHue, 460 U.S. 325, 333, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Such self-censorship may “deprive the finder of fact of candid, objective, and undistorted evidence.” Id. Yet, the Court also acknowledged the danger that a police officer or other witness may provide purposefully false testimony and escape liability. Id. at 345, 103 S.Ct. 1108. To balance against this risk, the Court emphasized the presence of “truthfinding safeguards of the judicial process,” id., and rejected the contention that absolute immunity should only apply to private witnesses because" }, { "docid": "19215993", "title": "", "text": "trial of Mayes. Solan was “very knowledgeable” about everything that took place during the Jaynes investigation, and that is one of the reasons why he was asked to sit with the prosecutor and to assist him at Mayes’ trial. Pl. Br., Exh. H, p. 121-22, 32-33. According to Vanes, Solan was the de facto lead detective at trial, and he would have expected Solan to know the steps taken by his detectives during the investigation. C. Motion for Summary Judgment-Raymond Myszak Mayes has sued Myszak in his individual capacity in Counts I (§ 1983 4th Amendment claim), II (§ 1983 14th Amendment denial of fair trial claim), Count V (false arrest and false imprisonment under Indiana law), and Count VI (Intentional Infliction of Emotional Distress under Indiana law). In his motion for summary judgment, Myszak argues that he is entitled to qualified immunity on Mayes’ due process claim as well as on Mayes’ Fourth Amendment claims, that he is entitled to absolute immunity for any claim based on his deposition testimony, that the lineup of Larry Mayes cannot serve as the basis for Mayes’ due process claim that he was denied a fair trial, and that the Indiana Tort Claims Act bars the state law claims made against Myszak in his individual capacity. Mayes responds to each argument in turn, with the exception of the Fourth Amendment claim. Accordingly, the Court grants summary judgment in favor of Myszak on Mayes’ Fourth Amendment claim in Count I of the Amended Complaint. The Court turns to each of Mys-zak’s defenses in turn. 1. Absolute Immunity “[W]hen a witness commits perjury, he or she is granted absolute immunity from civil liability.” Manning v. Miller, 355 F.3d 1028, 1034 (7th Cir.2004) (citing Briscoe v. LaHue, 460 U.S. 325, 331-32, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); see also Newsome v. McCabe, 319 F.3d 301, 304 (7th Cir.2003)). The Seventh Circuit extended this absolute immunity to deposition testimony. Nwoke v. Palmer, 116 Fed.Appx. 761, 763 (7th Cir.2004). However, the fact that a defendant has perjured himself does not immunize him for other actions or inactions" }, { "docid": "195170", "title": "", "text": "from any relevant testimony”). We also note that many courts, including the Supreme Court itself, have understood Briscoe to apply beyond the narrow confines of criminal trials to judicial proceedings generally. See, e.g., Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985) (citing Briscoe for the proposition that “witnesses, including po lice officers, who testify in judicial proceedings” enjoy absolute immunity, because they are integral parts of the judicial process); Myers v. Morris, 810 F.2d 1437, 1466 (8th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 97, 98 L.Ed.2d 58 (“the immunity [discussed in Briscoe ] extends beyond oral testimony”; it covers “reports and recommendations to the family court”); Tripati v. INS, 784 F.2d 345, 348 (10th Cir.1986) (citing Briscoe in holding that federal probation officers were absolutely immune from liability for damages stemming from allegedly false statements in a pretrial bond report and in a presentence report); Macko v. Byron, 760 F.2d 95, 97 (6th Cir.1985) (citing Briscoe in holding that witnesses who testified before grand jury were absolutely immune from civil liability under section 1983 based on their testimony, even if knowingly penurious); San Filippo v. U.S. Trust Co., 737 F.2d 246, 254 (2d Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985) (dictum) (stating that “it must follow” from Briscoe that grand jury witnesses are protected by the same absolute immunity that is enjoyed by witnesses at trial); Flynn v. Dyzwilewski, 644 F.Supp. 769, 773-74 (N.D.Ill.1986) (citing Cleavinger and Bris-coe in holding that attorney was absolutely immune from damages based on his testimony at hearing on inmate’s motion to vacate sentence); Buchanan v. Ford, 638 F.Supp. 168, 171 (N.D.N.Y.1986) (citing Briscoe in holding that social worker was absolutely immune from liability based on false testimony at family court preliminary proceeding). This court has given Briscoe a similarly expansive reading. See Meyers v. Contra Costa County Dep’t of Social Services, 812 F.2d 1154, 1156 (9th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 98, 98 L.Ed.2d 59 (citing Briscoe in holding that social worker was absolutely immune from liability" }, { "docid": "9348044", "title": "", "text": "to give clear instructions to the circuits on how to address additional factual situations. To follow the reasoning of Defendant would be to ignore these unambiguous directives from the Supreme Court. The Court will not address the preclu-sive effect of the state court judgment, as this goes beyond the required jurisdictional determination and the issue on appeal. B. THE DISTRICT COURT DID NOT ERR WHEN IT DENIED ABSOLUTE IMMUNITY TO DEFENDANT 1. Standard of Review This Court reviews the district court decision denying Defendant absolute immunity de novo. Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir.2004) (citing Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir.1997)). 2. Analysis a. Legal Framework In Briscoe v. LaHue, the Supreme Court held that police officers were absolutely immune from suit for their testimony at trial. 460 U.S. 325, 345-46, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). In reaching its decision, the Court recited the history of the long-established rule that private witnesses were absolutely immune from damages liability for their testimony in judicial proceedings. Id. at 330-34, 103 S.Ct. 1108. The rationale behind this absolute immunity was twofold: first, “witnesses might be reluctant to come forward to testify,” id. at 333, 103 S.Ct. 1108; second, those witnesses who came forward might distort their testimony because of fear of subsequent liability, id. The Court found that “the truth-finding process is better served if the witness’s testimony is submitted 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.’ ” Id. at 333-34, 103 S.Ct. 1108 (quoting Imbler v. Pachtman, 424 U.S. 409, 440, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). In Malley v. Briggs, the Supreme Court held that police officers were not absolutely immune from suit for seeking an arrest warrant based on deficient probable cause. 475 U.S. 335, 340-41, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The Court found that the police officer resembled a “complaining witness,” and a complaining witness was liable at common law for making a complaint with" }, { "docid": "23522793", "title": "", "text": "judicial economy support the resolution of the qualified immunity issue in this appeal. We engage in de novo review of the district court’s grant of summary judgment to the defendants, applying the same standard as the district court pursuant to Fed.R.Civ.P. 56. McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.1998). Summary judgment is warranted if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); Williams v. Widnall, 79 F.3d 1003, 1005 (10th Cir.1996). We examine the record to determine whether any. genuine issue of material fact is in dispute, construing the factual record and reasonable inferences therefrom in the light most favorable to the non-moving party. See Curtis v. Oklahoma City Pub. Schs. Bd. of Educ., 147 F.3d 1200, 1214 (10th Cir.1998). If there is no dispute concerning a genuine issue of material fact, we determine whether the district court correctly applied the substantive law. Peck v. Horrocks Eng’rs, Inc., 106 F.3d 949, 951 (10th Cir.1997). We begin our analysis by reviewing the protections provided to witnesses who testify at trial. We then apply the Pickering balancing to the defendant Mr. Henry. Next, we consider whether the Pickering approach should be applied to defendants (like Mr. Turner, Ms. Dodd, and Mr. Atwood) who are not the plaintiffs employer. Finally, we address the question of qualified immunity. A. Protection of Witnesses’ Testimony In order to encourage truthful and uninhibited testimony, the law has long afforded certain protections to witnesses. Under the common law, witnesses were immune from suits for damages for testimony in judicial proceedings. See Briscoe v. LaHue, 460 U.S. 325, 331, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). The grant of immunity sought to forestall two kinds of self-censorship. First, absent immunity, witnesses might be reluctant to come forward. See id. at 333, 103 S.Ct. 1108 (citing Henderson v. Broomhead, 157 Eng. Rep. 964, 968 (Ex. 1859)). Second, witnesses might distort their testimony out of fear of subsequent liability. The grant of immunity thus promoted full disclosure of" } ]

[ { "docid": "3128108", "title": "", "text": "exhaust Title VII remedies before suing under sections 504 and 505(a)(2) “sufficient reason” to extend the 45-day deadline, that issue is for the DLA to determine in the first instance. Cf. McGuinness, 744 F.2d at 1320-21 (interpreting similar provision in 29 C.F.R. § 1613.214(a)(4), and clarifying that dismissal in that case was “without prejudice to [McGuinness] bringing a new suit if and when he exhausts his administrative remedies”). Thus, we will clarify the district court’s order dismissing this action to note that Spence may maintain another suit if he pursues his Title VII remedies, the DLA excuses his failure to file the complaint during the 45 days following the alleged discriminatory act, and he exhausts the relevant procedures. We offer no view as to the appropriate outcome; instead, we emphasize that this is a matter for the DLA, not us, to determine. B. The district court dismissed Spence’s claim that the DLA denied Spence equal protection under the Due Process Clause of the Fifth Amendment (and that the DLA’s actions were arbitrary and irrational) on the ground that the Rehabilitation Act provides the exclusive means by which a litigant may raise claims of discrimination on the basis of handicap by federal agencies. Spence challenges that holding, as well, but we agree with the district court’s conclusion. Given that we have found that a litigant must exhaust administrative remedies under Title VII before filing suit against a federal agency alleging discrimination on the basis of handicap under sections 504 and 505(a)(2) of the Rehabilitation Act, it would be anomalous to permit a litigant to avoid that remedial scheme by simply asserting an independent constitutional claim premised upon the same facts. As the Seventh Circuit explained in McGuinness in rejecting a similar claim under the Fifth Amendment, “[A]ny effort to avoid sections 505’s requirement of exhausting administrative remedies by challenging the same conduct under another provision of law must fail because it would ‘allow [Congress’s] careful and thorough remedial scheme to be circumvented by artful pleading.’ ” McGuinness, 744 F.2d at 1322, quoting Brown v. General Services Administration, 425 U.S. 820, 833," } ]

[ { "docid": "22062049", "title": "", "text": "by the PLRA. On March 27, 2006, the .magistrate judge also determined, after an evidentiary hearing on the issue, that O’Guinn had failed to file NDOC grievances related to mental health treatment. The district court adopted the magistrate’s recommendation on March 28, 2006. The district court noted O’Guinn’s argument that he exhausted his mental health treatment claims after he filed his lawsuit, but held that O’Guinn was required to file a new action to reflect this exhaustion. Accordingly, the district court dismissed - O’Guinn’s suit without prejudice. O’Guinn filed a timely notice of appeal. II Dismissals based on a prisoner’s failure to exhaust remedies are reviewed de novo; factual findings are reviewed for clear error. See Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). In ruling on a dismissal motion, a “court may look beyond the pleadings and decide disputed issues of fact. If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice.” Id. at 1120 (internal citation omitted). We may affirm on any ground present in the record. See Sherman v. Harbin (In re Harbin), 486 F.3d 510, 520 (9th Cir.2007). III O’Guinn’s key argument is that the PLRA does not require exhaustion of claims arising under the ADA or Rehabilitation Act. O’Guinn claims that the district court erred in characterizing his second amended complaint as bringing § 1983 claims, rather than ADA and Rehabilitation Act claims, and then compounded this error by dismissing his claims for failure to exhaust administrative remedies. As explained below, we agree that O’Guinn pleaded claims under the ADA and Rehabilitation Act rather than under § 1983, but conclude that the PLRA requires administrative exhaustion of ADA and Rehabilitation Act claims. A The district court mischaracterized O’Guinn’s complaint as arising under § 1983. O’Guinn’s complaint clearly-pleaded ADA and Rehabilitation Act statutory violations. As discussed above, each of O’Guinn’s complaints stated that his claims were brought under the ADA and Rehabilitation Act and that he was not filing a civil rights complaint. Further, the factual assertions in the second amended complaint" }, { "docid": "18157990", "title": "", "text": "(Pl.’s Compl. ¶ 22). Defendants contend that to bring suit under the ADA, a plaintiff must exhaust his administrative remedies before the EEOC or the PHRC. See Churchill v. Star Enterprises, 183 F.3d 184, 190 (3d Cir.1999). Although Plaintiff filed complaints with the EEOC and the PHRC regarding his belief that Bucks County failed to provide him an accommodation, Pl.’s Compl. ¶ 12, Plaintiff neither alleges nor is there any indication that he filed an ADA retaliation claim with either agency. When a retaliation claim is not specifically presented to the EEOC, the test for whether that claim can be presented in district court is “ ‘whether the acts alleged in the subsequent ... suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.’ ” Douris v. Brobst, 2000 WL 199358, 2000 U.S. Dist. LEXIS 1579, at *9 (quoting Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.1984)). “The legal analysis for whether a judicial complaint is within the scope of an earlier administrative charge or a reasonable investigation therefrom turns on whether ‘there is a close nexus between the facts supporting each claim or whether additional charges made in the judicial complaint may fairly be considered explanations of the original charge or growing out of it.’ ” Ivory v. Radio One, Inc., C.A. No. 01-5708, 2002 WL 501489, at *2 (E.D.Pa. Apr.3, 2002) (quoting Fakete v. Aetna, Inc., 152 F.Supp.2d 722, 732 (E.D.Pa.2001)). Although the EEOC was on notice of Plaintiffs complaints against Bucks County for allegedly failing to provide him an accommodation, the EEOC would not have been expected to initiate a retaliation investigation based on Plaintiffs charge. See id. 2002 WL 501489, at *9-10 (citing Fieni v. Pocopson Home, C.A. No. 96-5343, 1997 WL 220280, at *5-6 (E.D.Pa. Apr.29, 1997) (dismissing retaliation claim where not mentioned in EEOC filing)). Therefore, Plaintiffs ADA retaliation claim against Defendants Bucks County and DA’s Office, and against Defendants Gibbons, Henry, Damon, and Rauch, in their official capacities, will be dismissed. 2. First Amendment and § 1983 Claims a. Absolute Immunity In his Complaint, Plaintiff alleges" }, { "docid": "9628566", "title": "", "text": "and, after the expiration of one year, a complainant may bring suit regardless of whether or not he has received a létter from the PHRC. See Burgh, 251 F.3d at 471. The Pennsylvania Supreme Court has explicitly held that a discharged employee cannot file a PHRA claim in the judicial system without first exhausting administrative remedies. See Clay, 559 A.2d at 919. Applying this binding interpretation of state law, courts in this district have consistently dismissed PHRA claims filed prior to the expiration of the PHRC’s one-year exclusive jurisdiction period. In Lyons v. Springhouse Corp., the court dismissed a PHRA claim, holding that the plaintiff, who filed a civil action only six months after having filed charges with the PHRC, had not exhausted his administrative remedies. See Lyons, 1993 WL 69515 at *3 (E.D.Pa. March 10, 1993); see also, Nicholls v. Wildon Indus., Inc., 1999 WL 1211656 (E.D.Pa. Dec.10, 1999) (dismissing plaintiffs PHRA claim for failing to wait a full year prior to filing a writ of summons in the Common Pleas Court). In Kozlowski v. Extendicare Health Servs., Inc., the plaintiff filed her initial civil complaint just over five months after filing her administrative complaint with the PHRC. See Kozlowski, 2000 WL 193502, *4 (E.D.Pa. Feb. 17, 2000). The court granted the defendants’ motion to dismiss for failure to exhaust, holding that, in presenting her claim to the court prior to the expiration of one year, plaintiff “refused to give the PHRC the opportunity to resolve her complaint through conciliation and failed even to make a good faith attempt to exhaust her remedies as required by the PHRA.” Id. See also Walker v. IMS Am., Ltd., 1994 WL 719611 (E.D.Pa. Dec. 22, 1994). Furthermore, in Atkinson v. Lafayette College, although the court refused to dismiss plaintiffs PHRA claim when she filed suit a day before the required one-year period would have expired, the court explained, “[u]nlike the cases defendants urge the court to follow, plaintiff has not demonstrated lack of good faith use of the PHRA administrative procedures by, for example, filing her lawsuit months before the one-year period" }, { "docid": "10641453", "title": "", "text": "dismissing them without prejudice. Upon the entry of final judgment, Mr. Thornton timely appealed to this court. The district court had jurisdiction over Mr. Thornton’s federal ADA claims under 28 U.S.C. § 1331. We have jurisdiction over Mr. Thornton’s appeal of the district court’s final judgment under 28 U.S.C. § 1291. II. On appeal, Mr. Thornton raises two issues: (1) whether the district court correctly determined that the allegations of discrimination encompassed by his 2001 MCAD charge place a limitation on the claims he can present now; and (2) whether the district court correctly determined that, assuming the 2001 MCAD complaint was properly limited, his remaining allegations do not support his claims of violation of the ADA. We review a district court’s grant of summary judgment de novo. See Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 855 (1st Cir.2008). Summary judgment is properly granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter-of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A. Administrative Claim Exhaustion As an initial matter, it is well-settled that an employee alleging discrimination must file an administrative claim with the EEOC or with a parallel state agency before a civil action may be brought. See Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 277 (1st Cir.1999) (“We hold that the ADA mandates compliance with the administrative procedures specified under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and that, absent special circumstances ... such compliance must occur before a federal court may entertain a suit that seeks recovery for an alleged violation of Title I of the ADA.”); see also Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir.2005) (“The employee may commence a civil action against [his] employer if, and only if, the EEOC has dismissed the administrative complaint or has itself failed to begin a civil action within 180 days of the original EEOC filing.... [A] plaintiffs unexcused failure to exhaust administrative remedies effectively" }, { "docid": "9628559", "title": "", "text": "Arizmendi v. Lawson, 914 F.Supp. 1157, 1160-61 (E.D.Pa.1996). ADA claims Defendants contend that Counts II and IV of plaintiffs complaint should be dismissed for failure to exhaust administrative remedies. Specifically, they argue that plaintiff failed to exhaust his administrative remedies because he filed a writ of summons in the court of common pleas before receiving a “right-to-sue” letter from the EEOC. Prior to filing suit in federal court under the ADA, a plaintiff must exhaust administrative remedies by filing a complaint with the EEOC. See 42 U.S.C. § 2000e; Churchill v. Star Enterprises, 183 F.3d 184, 190 (3d Cir.1999). The plaintiff must then wait 180 days, permitting the EEOC to take action on the complaint. At the end of this 180 day period, the plaintiff is entitled to bring suit, regardless of whether the EEOC proceedings have terminated. See Churchill, 183 F.3d at 191; Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.1984). To do so, the plaintiff may seek a right-to-sue letter from the EEOC, which it must issue upon request once the 180 day period has ended. See McNasby v. Crown Cork and Seal Co., Inc., 888 F.2d 270, 274 n. 3 (3d Cir.1989). The plaintiff has ninety days from receipt of the right-to-sue letter to file a lawsuit in district court. See 42 U.S.C. §§ 2000e-5(f)(1), 2000e-5(f)(3). While the attainment of a right-to-sue letter from the EEOC is a condition precedent to filing Title VII and ADA suits, the failure to obtain notice of the right to sue is a curable defect. See Gooding v. Warner-Lambert Co., 744 F.2d 354, 358 (3d Cir.1984); Jones v. American State Bank, 857 F.2d 494, 500 (8th Cir.1988). The Third Circuit has held that issuance of a right-to-sue letter is a statutory requirement that does not deprive a district court of jurisdiction and may be satisfied by issuance of the letter after the complaint has been filed. See Gooding, 744 F.2d at 358. See also, Molthan v. Temple University, 778 F.2d 955, 960 (3d Cir.1985) (holding that district court did not abuse discretion in considering retaliation claim where EEOC issued right-to-sue" }, { "docid": "9628558", "title": "", "text": "if the court finds the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Schering-Plough Corp., 145 F.3d at 604. Generally, “to the extent that [a] court considers evidence beyond the complaint in deciding a 12(b)(6) motion, it is converted to a motion for summary judgment.” Anjelino, 200 F.3d at 88. However, in resolving a 12(b)(6) motion to dismiss, a court may look beyond the complaint to matters of public record, including court files and records, and documents referenced in the complaint or essential to a plaintiffs claim which are attached to a defendant’s motion. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993). Under this standard, administrative filings, such as the record of the case before the EEOC, may be considered by the court without converting the motion to dismiss into a motion for summary judgment. See Pension Ben. Guar. Corp., 998 F.2d at 1196-97; Arizmendi v. Lawson, 914 F.Supp. 1157, 1160-61 (E.D.Pa.1996). ADA claims Defendants contend that Counts II and IV of plaintiffs complaint should be dismissed for failure to exhaust administrative remedies. Specifically, they argue that plaintiff failed to exhaust his administrative remedies because he filed a writ of summons in the court of common pleas before receiving a “right-to-sue” letter from the EEOC. Prior to filing suit in federal court under the ADA, a plaintiff must exhaust administrative remedies by filing a complaint with the EEOC. See 42 U.S.C. § 2000e; Churchill v. Star Enterprises, 183 F.3d 184, 190 (3d Cir.1999). The plaintiff must then wait 180 days, permitting the EEOC to take action on the complaint. At the end of this 180 day period, the plaintiff is entitled to bring suit, regardless of whether the EEOC proceedings have terminated. See Churchill, 183 F.3d at 191; Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.1984). To do so, the plaintiff may seek a right-to-sue letter from the EEOC, which it must issue upon request once the 180" }, { "docid": "22062060", "title": "", "text": "DOJ’s investigation of his claims satisfies the PLRA’s exhaustion requirement. In that case, a California state prisoner took his excessive force complaint through the second level of the prison’s four-level grievance process. Id. at 929-31. After the second level, the prison afforded Brown partial relief and turned Brown’s grievance into a “Staff Complaint” to be investigated by the Office of Internal Affairs. Id. at 931. This sort of personnel investigation could not afford Brown any relief. Id. at 937-38. Thus, we determined that Brown had properly exhausted his remedies for purposes of the PLRA because he had no further “available” remedy. Id. at 940. In this context, Brown’s statement that an outside investigation “can serve the purposes of the exhaustion requirement,” id. at 936, means that a prisoner has exhausted all available remedies when the prison administration’s referral of a complaint for investigation ends a prisoner’s appeal 1‘ights. As the DOJ investigation did not terminate O’Guinn’s rights to pursue his ADA and Rehabilitation Act claims internally, the investigation did not serve to exhaust his administrative remedies. V Because O’Guinn failed to exhaust his administrative remedies before filing his ADA and Rehabilitation Act claims, the district court correctly dismissed his lawsuit without prejudice. We note, however, that because O’Guinn appears to have exhausted these claims after he filed his original complaint, he need only file a new suit to have his case heard in a federal forum. AFFIRMED. . O’Guinn also argues that the district court should have allowed him to amend his complaint to reflect that he exhausted his administrative remedies after filing his second amended complaint. We squarely rejected this argument in McKinney v. Carey, 311 F.3d 1198 (9th Cir.2002) (per curiam). . As mentioned above, neither Title II of the ADA nor the Rehabilitation Act requires federal administrative exhaustion before bringing claims in court. See Zimmerman, 170 F.3d at 1178. O'Guinn bases his argument on the fact that federal regulations permit individuals who believe they have suffered discrimination based on a disability to file a complaint with the Department of Justice. See, e.g., 28 C.F.R. 35.170(c). . On" }, { "docid": "8661370", "title": "", "text": "MEMORANDUM WALDMAN, District Judge. I. BACKGROUND Plaintiffs bring this action against defendant Philadelphia Electric Co. (“PECO”), Ronald Price’s employer since 1977. The complaint alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.Stat. Ann. § 951, et seq. Plaintiffs aver that Mr. Price was the victim of racially discriminatory and retaliatory conduct. A number of state law claims are also asserted. Presently before the court is PECO’s Motion to Dismiss Counts III-IX of the Amended Complaint. II. STANDARD OF LAW In deciding defendants’ motion to dismiss for failure to state a cognizable claim, the court must accept as true all of the plaintiffs factual allegations and draw from them all reasonably favorable inferences. D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir.1984). A case should not be dismissed for failure to state a claim unless it clearly appears that no relief can be granted under any set of facts that could be proved consistent with the plaintiff’s allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984). III. DISCUSSION A. The PHRA claims Counts III and IV of the complaint allege that Ronald Price was the subject of racially discriminatory and retaliatory conduct in violation of the PHRA. To present a cognizable PHRA claim, a plaintiff must first exhaust all remedies under the statute. See Clay v. Advanced Computer Applications, 522 Pa. 86, 90-91, 559 A.2d 917, 919-20 (1989); Esmonde v. TV Guide Magazine, Civil No. 90-7376, slip op. at 13 n. 5, 1992 WL 70409 (E.D.Pa. March 30, 1992); James v. International Business Machines, 737 F.Supp. 1420, 1426-27 (E.D.Pa.1990). If the Pennsylvania Human Relations Commission (“PHRC”) does not act upon a complaint within one year of its filing, exhaustion has occurred. In this case, plaintiffs did not exhaust their PHRA remedies before instituting this action. Ronald Price filed complaints with both the PHRC and the Equal Employment Opportunity Commission (“EEOC”) on November 23, 1990. The PHRC had not" }, { "docid": "9628563", "title": "", "text": "letter before bringing civil suit. See id. at 63. Moreover, while Title VII and ADA claimants must wait up to 180 days after filing an EEOC claim before filing suit, ADEA claimants need only wait 60 days. See 29 U.S.C. § 626(d); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979); Whalen v. W.R. Grace & Co., 56 F.3d 504, 506 (3d Cir.1995); Seredinski, 776 F.2d at 63. The shorter time period reflects Congress’ intent to allow ADEA grievants, who are older and have relatively few productive years left, earlier and freer access to federal courts than Congress has allowed to Title VII grievants. See Oscar Mayer & Co., 441 U.S. at 757, 99 S.Ct. 2066; Solimino v. Astoria Federal Savings and Loan Assn., 901 F.2d 1148, 1152 (2nd Cir.1990). Plaintiff filed a timely complaint with the EEOC on November 25, 2000. It was not until April 2, 2001, well after the sixty-day waiting period required by § 626(d), that plaintiff filed a writ of summons with the Court of Common Pleas of Northampton. Thus, plaintiff adequately exhausted his administrative remedies in regards to his ADEA claim. Lehigh’s motion to dismiss this claim is without merit and is hereby denied. PHRA claim Defendants argue that Count V of plaintiffs amended complaint should be dismissed for failure to exhaust administrative remedies. They specifically contend that Tlush did not exhaust his administrative remedies because he failed to wait one year before presenting his PHRA claim to the court of common pleas. Additionally, defendants argue that plaintiffs demand for a jury trial under the PHRA must be stricken because the Pennsylvania Supreme Court has held that claimants are not entitled to jury trials under the PHRA Tlush argues that he has exhausted his administrative remedies under the PHRA because more than one year has expired since he filed his PHRA claim. A plaintiff who wishes to bring a PHRA claim in civil court must first file an administrative complaint with the PHRC. See Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir.1997). A" }, { "docid": "22369262", "title": "", "text": "person, but he submitted an affidavit to the Equal Employment Opportunity Commission (“EEOC”) stating that he believes the Postal Service discriminated against him on the basis of his race, color, religion, sex, national origin, and/or age. Leong’s affidavit does not mention disability. On March 5, 2001, Leong filed a pro se Title VII complaint in the Northern District of California. On January 22, 2002, Leong, represented by counsel, filed an amended complaint, adding his disability discrimination claim under the Rehabilitation Act. The amended complaint alleged that Leong is disabled because he suffers from depression and language and speech processing difficulties. Leong was diagnosed with schizotypal personality disorder in June 2002, and this disability now provides the basis for his disability discrimination claim. On August 2, 2002, the district court dismissed his disability complaint for lack of subject matter jurisdiction, holding that Leong failed to exhaust administrative remedies as to his disability complaint because he never alleged disability discrimination during the EEOC investigation. Additionally, the district court granted USPS summary judgment on Leong’s Title VII claims. Leong timely filed an appeal to this Court. II. REHABILITATION ACT CLAIM A. Standard of Review The district court’s determination that it lacks subject matter jurisdiction because the plaintiff failed to exhaust administrative remedies is reviewed de novo. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir.2002). If the district court correctly determines its jurisdiction, the court’s decision whether to apply equitable tolling or equitable estoppel is reviewed for abuse of discretion. Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175 (9th Cir.2000). B. Failure to Exhaust Administrative Remedies The district court properly held that Leong was required to exhaust his administrative remedies with the EEOC before pursuing his Rehabilitation Act claim in district court. Leorna v. U.S. Dep’t of State, 105 F.3d 548, 550 (9th Cir.1997); Vinieratos v. United States, 939 F.2d 762, 773 (9th Cir.1991). A claimant must consult an EEO counselor in order to attempt to resolve a dispute informally before resorting to litigation. Leorna, 105 F.3d at 550. Although failure to file an EEOC complaint is not a complete" }, { "docid": "23010669", "title": "", "text": "the one-year period after filing the administrative complaint as the accrual of the time to file suit. The court held that the limitations period on the PHRA claim began running one year after Burgh had filed the administrative charge, on December 8, 1995, because at that point Burgh had exhausted his administrative remedies and could have brought his claim in court. The court held that this period for bringing a court action expired two years later. Like Title VII, the PHRA establishes two limitations periods: first, the administrative charge must be filed by a complainant with the PHRC within 180 days of the alleged discrimination, see 43 Pa. C.S. § 959(h); second, a court action must be filed within two years of the date that the PHRC gives the complainant notice of the closing of the administrative complaint. See 43 Pa.C.S. § 962(c)(2). As in Title VII, these periods represent the complete legislative determination as to the appropriate timing provisions under the PHRA. There is no basis for a court, particularly a federal court sitting in diversity, to engraft any additional limitations periods as gap-fillers. There are no statutory gaps to be filled. As we note in footnote 4, the Pennsylvania Superior Court in Raleigh v. Westinghouse Elec. Corp., 379 Pa.Super. 606, 550 A.2d 1013, 1014 (1988), did apply the Pennsylvania two-year personal injury statute of limitations to bar plaintiffs claim. Raleigh, however, was decided in 1988, prior to the 1991 amendments to the PHRA that added the two-year limitations period from the dismissal of the administrative complaint now contained in § 962(c)(2). Because Raleigh is inconsistent with § 962(c) as amended, we will not follow it. We similarly decline to follow our dictum in Northview Motors, Inc. v. Chrysler Motors Corp., 227 F.3d 78, 90-91 (3d Cir.2000), which cited Raleigh in stating that Pennsylvania’s two-year personal injury limitations period applies to PHRA claims. Finally, we disapprove the District Court decisions in Onibokun v. Berks County Children and Youth Servs., Civ. No. 98-4402, 1999 WL 681697 (E.D.Pa.1999) and Long v. Board of Educ. of City of Philadelphia, 812 F.Supp. 525," }, { "docid": "9628564", "title": "", "text": "the Court of Common Pleas of Northampton. Thus, plaintiff adequately exhausted his administrative remedies in regards to his ADEA claim. Lehigh’s motion to dismiss this claim is without merit and is hereby denied. PHRA claim Defendants argue that Count V of plaintiffs amended complaint should be dismissed for failure to exhaust administrative remedies. They specifically contend that Tlush did not exhaust his administrative remedies because he failed to wait one year before presenting his PHRA claim to the court of common pleas. Additionally, defendants argue that plaintiffs demand for a jury trial under the PHRA must be stricken because the Pennsylvania Supreme Court has held that claimants are not entitled to jury trials under the PHRA Tlush argues that he has exhausted his administrative remedies under the PHRA because more than one year has expired since he filed his PHRA claim. A plaintiff who wishes to bring a PHRA claim in civil court must first file an administrative complaint with the PHRC. See Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir.1997). A complaint need not be filed directly with the PHRC, and the transmittal of the EEOC complaint to the PHRC constitutes a filing of a verified complaint with the PHRC. See Lukus v. Westinghouse Elec. Corp., 276 Pa.Super. 232, 419 A.2d 431, 452 (1980). Plaintiffs who fail to exhaust administrative remedies with the PHRC are barred from judicial remedies under the PHRA. See id. 43 P.S. § 962 governs the procedural requirements for bringing PHRA claims, and grants the PHRC exclusive jurisdiction over claims for a period of one year, in order to investigate and, if possible, conciliate the claims. 43 P.S. § 962(c)(1). See Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465, 471 (3d Cir.2001); Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917, 920 (1989) (“[t]he legislative history of section 962(c) shows that the Legislature intended that the PHRC should have exclusive jurisdiction of a complaint alleging violations under the PHRA for a period of one year”). No right-to-sue letter is required in connection with PHRA claims" }, { "docid": "23056378", "title": "", "text": "them in her deposition, although she discussed them in her EEOC questionnaires. The District Court found all of Mandel’s claims under the PHRA time barred, as well as all claims under Title VII for incidents that occurred prior to November 17, 2006. The District Court then considered the remaining incidents on the merits and granted summary judgment in favor of M & Q. Mandel appealed, and the EEOC filed an amicus brief. II. DISCUSSION A. Motion to Dismiss Mandel argues that the District Court erred in granting M & Q’s motion to dismiss all claims of retaliation. We exercise plenary review of an order granting a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Newman v. Beard, 617 F.3d 775, 779 (3d Cir. 2010). We accept all factual allegations as true and construe the complaint in the light most favorable to the plaintiff. Id. A plaintiff “must exhaust all required administrative remedies before bringing a claim for judicial relief.” Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir.1997). To bring a claim under Title VII, a plaintiff must file a charge of discrimination with the EEOC and procure a notice of the right to sue. See id. at 1020-21. The same is required to bring a claim under the PHRA. Atkinson v. LaFayette Coll., 460 F.3d 447, 454 n. 6 (3d Cir.2006) (“Claims under the PHRA are interpreted coextensively with Title VII claims.”). “[T]he parameters of the civil action in the district court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, including new acts which occurred during the pendency of proceedings before the [EEOC].” Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.1976) (citations omitted). A plaintiffs claim must thus fall “fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.” Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir.1996). Mandel contends, as she did before the District Court, that she was constructively discharged due to intolerable work conditions after she complained of sex discrimination" }, { "docid": "23135243", "title": "", "text": "I because a stay, by delaying her opportunity to obtain relief under FMLA, would have prejudiced her and frustrated public policy. She alternately argues that she did move for a stay in Churchill I. She further argues that she should not have been required to request that the EEOC expedite issuance of the right to sue letter in order to exhaust the administrative claims. For the reasons that follow we reject those arguments, and uphold the district court’s application of claim preclusion principles. 1. The claims in Churchill II required administrative exhaustion. As we have indicated the court granted Appellees’ motion for judgment on the pleadings on Churchill’s ADA and PHRA claims in Churchill II. Unlike the FMLA, both the ADA and the PHRA require pursuit of administrative remedies before a plaintiff may file a complaint in court. Thus, a party who brings an employment discrimination claim under Title I of the ADA must follow the administrative procedures set forth in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. See Bishop v. Okidata, Inc., 864 F.Supp. 416, 424 (D.N.J.1994). Accordingly, a party must wait 180 days after filing a charge with the EEOC for ADA violations before being able to forego the administrative process and file suit in court. See 42 U.S.C. § 2000e-5(e)(1). After 180 days, “[i]f a complainant is dissatisfied with the progress the EEOC is making on his or her charge of employment discrimination, he or she may elect to circumvent the EEOC procedures and seek relief through a private enforcement action in a district court.” Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355, 361, 97 S.Ct. 2447, 2451, 53 L.Ed.2d 402 (1977). Similarly, a party must wait one year after filing charges with the PHRC for alleged PHRA violations before having the option to forego the state administrative process and file suit in court. PHRA provides that the PHRC shall have exclusive jurisdiction of an administrative claim for one year after its filing, unless the PHRC resolves the claim before the one year has elapsed. See 43 Pa." }, { "docid": "22062048", "title": "", "text": "on the basis of his disability and that he had been denied accommodations for his disability in violation of these statutes. O’Guinn attached his DOJ ADA/Rehabilitation Act complaint form to the second amended complaint. He also indicated that he had not exhausted the NDOC’s grievance procedures, stating: “Grievance not applicable to ADA/Rehab Act and is not required under these acts.” Defendants moved to dismiss the second amended complaint on several grounds, including O’Guinn’s failure to exhaust his administrative remedies. In response, O’Guinn argued that exhaustion was not required because prisoners bringing suit under the ADA do not have to- exhaust prison remedies, and the NDOC’s own administrative grievance process, Administrative Regulation 740, prohibits grievances pertaining to federal law. He also argued that if there were a federal exhaustion requirement, he- met it by filing his complaint with the DOJ. In her recommendation to the district court on November 14, 2005, the magistrate judge determined that O’Guinn had filed his suit under § 1983 and had failed to exhaust administrative remedies before filing suit, as required by the PLRA. On March 27, 2006, the .magistrate judge also determined, after an evidentiary hearing on the issue, that O’Guinn had failed to file NDOC grievances related to mental health treatment. The district court adopted the magistrate’s recommendation on March 28, 2006. The district court noted O’Guinn’s argument that he exhausted his mental health treatment claims after he filed his lawsuit, but held that O’Guinn was required to file a new action to reflect this exhaustion. Accordingly, the district court dismissed - O’Guinn’s suit without prejudice. O’Guinn filed a timely notice of appeal. II Dismissals based on a prisoner’s failure to exhaust remedies are reviewed de novo; factual findings are reviewed for clear error. See Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). In ruling on a dismissal motion, a “court may look beyond the pleadings and decide disputed issues of fact. If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice.” Id. at 1120 (internal citation omitted). We may" }, { "docid": "18157989", "title": "", "text": "such liability exists.’ ” Douris v. Brobst, 2000 WL 199358, 2000 U.S. Dist. LEXIS 1579, at *7 (quoting Meara v. Bennett, 27 F.Supp.2d 288, 290 (D.Mass.1998) (citing Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1279-82 (7th Cir.1995)). In light of these decisions, Plaintiff’s ADA retaliation claim against Defendants Gibbons, Henry, Damon, and Rauch in their individual capacities fails as a matter of law and .will be dismissed. b. Official Capacity The Court now considers Plaintiffs ADA retaliation claim against Defendants Bucks County and DA’s Office and Defendants Gibbons, Henry, Damon, and Rauch, in their official capacities. Plaintiff asserts that Defendants filed and/or prosecuted criminal and traffic charges against him in retaliation for his opposition to Bucks County’s “illegal practice to discriminate against persons with a disabled [sic] by failing to provide the legally required accessibility to their facilities, and knew or should have know [sic] because Plaintiff has' filed discrimination charges against the Defendants with the Department of Justice and PA. Human Relations Commission.” (Pl.’s Compl. ¶ 22). Defendants contend that to bring suit under the ADA, a plaintiff must exhaust his administrative remedies before the EEOC or the PHRC. See Churchill v. Star Enterprises, 183 F.3d 184, 190 (3d Cir.1999). Although Plaintiff filed complaints with the EEOC and the PHRC regarding his belief that Bucks County failed to provide him an accommodation, Pl.’s Compl. ¶ 12, Plaintiff neither alleges nor is there any indication that he filed an ADA retaliation claim with either agency. When a retaliation claim is not specifically presented to the EEOC, the test for whether that claim can be presented in district court is “ ‘whether the acts alleged in the subsequent ... suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.’ ” Douris v. Brobst, 2000 WL 199358, 2000 U.S. Dist. LEXIS 1579, at *9 (quoting Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.1984)). “The legal analysis for whether a judicial complaint is within the scope of an earlier administrative charge or a reasonable investigation" }, { "docid": "23010651", "title": "", "text": "955(a). The analysis of the claims is identical. See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 317 n. 3 (3d Cir.2000) (citing Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410-11 (3d Cir.1999)). Both statutes also establish administrative remedies and procedures that claimants must exhaust prior to bringing a civil action in court. See 42 U.S.C. § 2000e-5, 43 Pa.C.S. § 962(c); see also Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir.1997) (holding, in Title VII case, that plaintiff must exhaust administrative remedies prior to bringing suit in court); Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917, 921 (1989) (holding that the intended forum for initially addressing PHRA claims is the PHRC); Bailey v. Storlazzi 729 A.2d 1206, 1214 (Pa.Super.Ct.1999) (holding that plaintiff must exhaust administrative remedies under PHRA prior to bringing case to court). The statutes have slightly different requirements in terms of timing and scope of the administrative remedy. Because this case turns on the precise requirements of each statute, an overview of the statutory provisions is helpful. A. TITLE VII Under Title VII, a charge of race discrimination in employment must be filed with the EEOC within 180 days of the occurrence of the alleged unlawful employment practice. The EEOC must serve notice of the charge on the employer with in ten days of the filing of the charge. See 42 U.S.C. § 2000e-5(e)(l); see also Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977). If the complainant also initiates a complaint with a parallel state agency, as occurred in the instant case, the period for filing the charge with the EEOC is extended to 300 days from the date of the alleged unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(l). The EEOC is then required to investigate the charge, see Occidental Life, 432 U.S. at 359, 97 S.Ct. 2447, and the complainant must allow a minimum of 180 days for the EEOC investigation to proceed. See 42 U.S.C. § 2000e-5(f)(l); see also Occidental Life, 432 U.S. at 361, 97" }, { "docid": "23056381", "title": "", "text": "always drafted by a non-lawyer.” “[A]n unsophisticated, inartfully drafted Charge” should not be dispositive of a plaintiffs rights. Such an argument is inapt here because Mandel, even as a non-lawyer, could have easily checked the box for retaliation on the Charge but failed to do so. She also failed to allege any retaliatory conduct in the Charge. When asked in the questionnaires whether she had reported the alleged harassment to her employer, she responded “no” and again failed to check the box for retaliation. Because Mandel failed to exhaust her remedies for any claims of retaliation, we will affirm the District Court’s dismissal of Counts I, II, and III to the extent that they allege claims of retaliation. B. Motion for Summary Judgment Mandel appeals the District Court’s grant of summary judgment in M & Q’s favor on the PHRA claims, the Title VII hostile work environment claim, and the Title VII sex discrimination claims. We review the District Court’s grant of summary judgment de novo and apply the same standard as the District Court. Doe v. Indian River Sch. Dist., 653 F.3d 256, 275 n. 7 (3d Cir.2011). “Summary judgment should be granted ‘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.’ ” Id. (quoting Fed.R.Civ.P. 56(a)). We view “the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Id. 1. PHRA Claims To bring suit under the PHRA, an administrative complaint must first be filed with the PHRC within 180 days of the alleged act of discrimination. 43 Pa. Stat. § 959(h). The District Court found all PHRA claims time barred, reasoning that more than 180 days had passed from Mandels resignation on May 23, 2007, to her cross-filing of a complaint with the PHRC on December 14, 2007. Mandel contends that the 180-day period should instead be calculated from September 13, 2007, the date on which the EEOC received her questionnaires. The District Court rejected that argument, explaining that “the" }, { "docid": "9628565", "title": "", "text": "complaint need not be filed directly with the PHRC, and the transmittal of the EEOC complaint to the PHRC constitutes a filing of a verified complaint with the PHRC. See Lukus v. Westinghouse Elec. Corp., 276 Pa.Super. 232, 419 A.2d 431, 452 (1980). Plaintiffs who fail to exhaust administrative remedies with the PHRC are barred from judicial remedies under the PHRA. See id. 43 P.S. § 962 governs the procedural requirements for bringing PHRA claims, and grants the PHRC exclusive jurisdiction over claims for a period of one year, in order to investigate and, if possible, conciliate the claims. 43 P.S. § 962(c)(1). See Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465, 471 (3d Cir.2001); Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917, 920 (1989) (“[t]he legislative history of section 962(c) shows that the Legislature intended that the PHRC should have exclusive jurisdiction of a complaint alleging violations under the PHRA for a period of one year”). No right-to-sue letter is required in connection with PHRA claims and, after the expiration of one year, a complainant may bring suit regardless of whether or not he has received a létter from the PHRC. See Burgh, 251 F.3d at 471. The Pennsylvania Supreme Court has explicitly held that a discharged employee cannot file a PHRA claim in the judicial system without first exhausting administrative remedies. See Clay, 559 A.2d at 919. Applying this binding interpretation of state law, courts in this district have consistently dismissed PHRA claims filed prior to the expiration of the PHRC’s one-year exclusive jurisdiction period. In Lyons v. Springhouse Corp., the court dismissed a PHRA claim, holding that the plaintiff, who filed a civil action only six months after having filed charges with the PHRC, had not exhausted his administrative remedies. See Lyons, 1993 WL 69515 at *3 (E.D.Pa. March 10, 1993); see also, Nicholls v. Wildon Indus., Inc., 1999 WL 1211656 (E.D.Pa. Dec.10, 1999) (dismissing plaintiffs PHRA claim for failing to wait a full year prior to filing a writ of summons in the Common Pleas Court). In Kozlowski" }, { "docid": "23056382", "title": "", "text": "Doe v. Indian River Sch. Dist., 653 F.3d 256, 275 n. 7 (3d Cir.2011). “Summary judgment should be granted ‘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.’ ” Id. (quoting Fed.R.Civ.P. 56(a)). We view “the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Id. 1. PHRA Claims To bring suit under the PHRA, an administrative complaint must first be filed with the PHRC within 180 days of the alleged act of discrimination. 43 Pa. Stat. § 959(h). The District Court found all PHRA claims time barred, reasoning that more than 180 days had passed from Mandels resignation on May 23, 2007, to her cross-filing of a complaint with the PHRC on December 14, 2007. Mandel contends that the 180-day period should instead be calculated from September 13, 2007, the date on which the EEOC received her questionnaires. The District Court rejected that argument, explaining that “the filing of a charge with the EEOC in itself is not sufficient to comply with the PHRA.” We have previously addressed dual filing with the EEOC and the PHRC, explaining: [T]he worksharing agreement [which divides responsibility for processing claims that have been dual filed with both the EEOC and the PHRC] allows a plaintiff to proceed in court under Title VII without first filing with the PHRC. That, however, does not mean that a plaintiff can initiate PHRC proceedings as required by the PHRA merely by filing with the EEOC. Whether a plaintiff has initiated PHRC proceedings under the PHRA is a state law issue.... EEOC procedures are not a sufficient surrogate for PHRC remedies. Woodson v. Scott Paper Co., 109 F.3d 913, 926-27 (3d Cir.1997) (footnotes omitted). The District Court correctly concluded, therefore, that “the mere filling out of an EEOC charge information questionnaire cannot be in itself sufficient to comply with the PHRA.” Moreover, as the District Court noted, the questionnaires did not contain any indication of dual filing. Mandel further argues that" } ]

[ { "docid": "22764279", "title": "", "text": "that any appeal dismissed as frivolous counts against the petitioner; it makes no exception for frivolous appeals of district court dismissals. Therefore we find that Congress would have us count both the dismissal in the district court and the separate dismissal of the appeal as frivolous. This holds true whether the case is dismissed under Fifth Cir. R. 42.2, unamended section 1915(d)(allowing courts to dismiss cases or appeals as frivolous), the new section 1915(e)(2) (as amended by PLRA) (allowing courts to dismiss cases at any time for a broad array of reasons), new section 1915A(b) (as amended by PLRA) (same), 42 U.S.C. § 1997e(c)(1) (as amended by PLRA) (allowing courts to dismiss section 1983 prison conditions cases) or any other grounds independent of the district court’s disposition. Adepegba’s appeal in Adepegba v. Louisiana is strike three. We therefore find that Adepegba has three or more strikes under the statute. Adepegba is out, and not just in this appeal. Under the terms of the statute, he may pursue another action in federal court i.f.p. only if he is in “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g), as amended. Therefore, except for cases involving an imminent danger of serious physical injury, we bar him from proceeding farther under the statute and dismiss all of Adepegba’s i.f.p. appeals pending in this court. He may resume any claims dismissed under section 1915(g), if he decides to pursue them, under the fee provisions of 28 U.S.C. §§ 1911-14 applicable to everyone else. III Therefore we DISMISS Adepegba’s appeal in this ease, as well as any other appeal not involving physical injury, pending in this circuit on the date of this opinion. . See Adepegba v. Sheriff, No. 94-40134, 30 F.3d 1494 (5th Cir. Jul. 21, 1994) (affirmance of section 2241 dismissal without prejudice for failure to exhaust administrative remedies); Adepegba v. United States Postal Service, No. 94-10259, 32 F.3d 566 (5th Cir. Jul. 28, 1994) (reversal and remand of Bivens action dismissed by district court as frivolous); Adepegba v. Morgan, No. 94-10681, 37 F.3d 629 (5th Cir. Sept. 20, 1994) (affirming section" } ]

[ { "docid": "8400705", "title": "", "text": "despite the fact that other related claims in the same action proceed to adjudication on the merits. The district court concluded these prior split cases did result in a strike. Mr. Turley contends that the court’s application of the three-strikes limitation on a claim-by-claim basis is contrary to the plain language of the statute. He further challenges the district court’s finding that he was not in imminent danger. See 28 U.S.C. § 1915(g); Ciarpaglini v. Saini 352 F.3d 328, 330-31 (7th Cir.2003). We review de novo a district court’s application of the PLRA’s three-strikes limitation. Ciarpaglini 352 F.3d at 330; Evans v. Ill. Dep’t of Corr., 150 F.3d 810, 811 (7th Cir.1998). “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985); see also Ortega v. Holder, 592 F.3d 738, 743 (7th Cir.2010); United States v. Olofson, 563 F.3d 652, 658 (7th Cir.2009). Turning to that language, § 1915(g) prohibits a prisoner from proceeding IFP if he has a history of frivolous litigation: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g) (emphasis added). Section 1915(g) literally speaks in terms of prior actions that were dismissed as frivolous, malicious or for failure to state a claim. The statute does not employ the term “claim” to describe the type of dismissal that will incur a strike. “Action” and “claim” have well-defined meanings in the pleading context. See Fed.R.Civ.P. 3 (providing that a civil “action”" }, { "docid": "8300045", "title": "", "text": "at *7 (N.D.Ill. Apr. 11, 2005) (“Genuine issues of material fact exist as to ... whether Pena and De Van witnessed Soto using a choke hold [on plaintiff] and had a realistic opportunity to intervene to prevent the choke hold. Given these disputed facts, Pena and De Van’s summary judgment motion on Count I must be denied”). IX. Revocation of Plaintiffs IFP Status under 28 U.S.C. § 1915(g) Defendants have requested that, as to the defendants who remain in this action, plaintiffs in forma pauperis status be revoked pursuant to 28 U.S.C. § 1915(g), which provides that [i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. Under this “three strikes” rule, then, [a] prisoner who accrues three strikes is barred from proceeding in forma pau-peris in future suits with respect to prison conditions. There is an exception to this bar when “the prisoner is under imminent danger of serious physical injury.” And, of course, prisoners with three strikes are free to continue filing suits with respect to prison conditions so long as they pay filing fees and court costs. Ortiz v. McBride, 380 F.3d 649, 658 n. 7 (2d Cir.2004) (citations omitted), cert. de nied, 543 U.S. 1187, 125 S.Ct. 1398, 161 L.Ed.2d 190 (2005). Defendants base this request on docket sheets from a number of other cases that plaintiff has filed in the Southern District of New York and appeals that he has filed in the Second Circuit, all of which were dismissed as frivolous or for failure to state a claim. See Dkt. #219 at 9-55. Defendants also assert that there is no indication that plaintiff, who is no longer at" }, { "docid": "22379476", "title": "", "text": "screening and segregating inmates with HIV and hepatitis C threatens his health. At this threshold stage however — and given that Andrews does allege that cellmates engage without permission in practices that could involve blood contact and that Solano has had an outbreak of hepatitis C — Andrews’s complaint adequately alleged “imminent danger” for § 1915(g) purposes. Andrews should therefore have been granted IFP status to proceed with his entire complaint. REVERSED and REMANDED. . The statute provides that any court of the United States may authorize the commencement, prosecution or de fense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. 28 U.S.C. § 1915(a)(1); see also Lister v. Dep’t of the Treasury, 408 F.3d 1309, 1312 (10th Cir.2005) (explaining that the statute applies to all persons notwithstanding its \"prisoner possesses” language, and collecting cases so holding). . Because we hold that Andrews could proceed IFP with his entire complaint pursuant to the \"imminent danger” exception, we do not address his contention — undecided in this circuit — that the district court improperly treated a suit dismissed pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), as a strike under the PLRA. We also have no reason to address Andrews's arguments that the district court procedurally erred in determining that certain prior 'suits counted as strikes or that the three-strikes rule was unconstitutionally applied to him. . There is only scant legislative history regarding the PLRA. None of it refers to the three-strikes exception. See B. Patrick Costello, Jr., “Imminent Danger” Within 28 U.S.C. § 1915(g) of the Prison Litigation Reform Act: Are Congress and Courts Being Realistic? 29 J. LEGIS. 1, 5 (2002). . The statute also prevents prisoners with three strikes from using IFP status to \"appeal a judgment.” A motions panel of this court granted IFP status to Andrews for" }, { "docid": "8908153", "title": "", "text": "frivolousness determination and that Jacobs is hindering that consideration by filing numerous non-responsive pleadings. In such a circumstance, mandamus relief is inappropriate, and Jacobs’s request that we direct the district court to order service of process at this time is frivolous. The petition for a writ of mandamus is therefore DISMISSED AS FRIVOLOUS. We have previously held that a mandamus petition of this type is “not an independent civil action, but may be considered a type of appeal” for purposes of applying the fee provisions of § 1915(a)(2). In re Stone, 118 F.3d at 1034. We have also held that the three-strikes provision of the PLRA, 28 U.S.C. § 1915(g), applies to mandamus petitions arising from underlying civil actions such that a litigant who has accumulated three such strikes may not proceed under the PLRA, but must prepay the filing fee. See In re Critten-den, 143 F.3d 919, 920 (5th Cir.1998). The operative language of § 1915(a)(2) (“a prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding”) is identical to that of § 1915(g) (“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding” if he has accumulated three strikes). We now hold that, if a mandamus petition arising from an underlying civil case is dismissed as frivolous, that dismissal counts as a “strike” for purposes of § 1915(g). Accordingly, Jacobs is hereby informed that the dismissal of this mandamus action as frivolous counts as a strike for purposes of § 1915(g). We caution Jacobs that once he accumulates three strikes, he may not proceed IFP either in any civil action or in any appeal of a civil action, including a mandamus petition challenging district court action in an underlying civil suit, which is filed while he is incarcerated or detained in any facility, unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). IFP GRANTED; PETITION FOR MANDAMUS DISMISSED AS FRIVOLOUS; THREE-STRIKES WARNING ISSUED. . The nature of the underlying action, determines whether the fee requirements" }, { "docid": "22764266", "title": "", "text": "action and dismissed each, one as frivolous because it was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and the other for failure to exhaust administrative remedies under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. Adepegba filed a timely notice of appeal December 14,1995. This appeal is not Adepegba’s first; indeed he is a frequent filer in this court. We have considered eleven prior Adepegba appeals, and we have dismissed all of them — three of them as frivolous. On April 26, 1996, after Adepegba filed notice of appeal in the instant ease, the President signed into law the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA” or “Act”), which modifies the requirements for proceeding in forma pauperis (“i.f.p.”) in federal courts. Among other things, the PLRA revokes prisoners’ privileges to proceed i.f.p. if they have, on three prior occasions during detention, had an action or appeal dismissed as frivolous, malicious, or for failing to state a claim. 28 U.S.C. § 1915(g), as amended by PLRA. Section 1915(g) contains an exception that allows prisoners whose privileges have been revoked to proceed i.f.p. in cases involving imminent danger of serious physical injury. Id. II Before we address the merits of Adepegba’s dismissal in the district court, we must first decide whether the new provisions of the PLRA apply. The new statute provides: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g), as amended. This case presents two threshold issues: First, does section 1915(g) govern Adepegba’s appeal, which was filed before the Act became law?" }, { "docid": "12201982", "title": "", "text": "96-CV-122B (S.D. Cal. Oct. 28, 1997) (Prunty I) listed several other strikes. The district court also found that El-Shaddai had not shown that he was entitled to the “imminent danger” exception to the threé-strikes rule. See 28 U.S.C. § 1915(g). In response to El-Shaddai’s motion for reconsideration, the district court explicitly found three additional cases to be strikes. Counting all of the cases cited in the district court’s two orders, as well as all of the cases identified as strikes in Prunty I, there are eléven potential strikes that the district court may have relied on in finding El-Shaddai ineligible for IFP status. El-Shaddai timely appealed the denial of his motion for reconsideration. ANALYSIS The PLRA provides that “[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [informa pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). “Not all unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to deny a prisoner’s IFP status only when, after careful evaluation of the order dismissing an action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious, or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). As a general matter, when we review a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is whether the dismissal “rang the PLRA bells of frivolous, malicious, or failure to state a claim.” Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013); see also Andrews, 398 F.3d at 1121; Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir." }, { "docid": "22379461", "title": "", "text": "address concerns that prisoners proceeding IFP were burdening the federal courts with frivolous lawsuits, the PLRA altered the IFP provisions for prisoners in an effort to discourage such suits. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir.2001) (en banc). Although indigent prisoners are still accorded IFP status if they establish that they meet the prerequisites, § 1915(b) provides that prisoners proceeding IFP must pay the filing fee as funds become available in their prison accounts. Additionally, prisoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP status under the three-strikes rule: In no event shall a prisoner bring a civil action ... under this section [authorizing IFP proceedings] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of •serious physical injury. 28 U.S.C. § 1915(g). At issue in this case is the exception contained in § 1915(g) for prisoners “under imminent danger of serious physical injury.” “The denial of a motion to proceed IFP is appealable as a final judgment under 28 U.S.C. § 1291.” Andrews, 398 F.3d at 1118. We review the district court’s interpretation and application of § 1915(g) de novo. Id. This circuit has not previously addressed the “imminent danger” exception to the three-strikes rule, but several other circuits have done so. In examining those decisions, we find general agreement on two pertinent points: Prisoners qualify for the exception based on the alleged conditions at the time the complaint was filed. And qualifying prisoners can file their entire complaint IFP; the exception does not operate on a claim-by-claim basis or apply to only certain types of relief. Because we agree that both determinations accord with the best reading of the statute, we adopt them as well. With these preliminary principles established, we then consider, informed by other circuits’ examinations of the provision," }, { "docid": "22280324", "title": "", "text": "injury, but the new allegations also arose from those he had made in his previous lawsuit. Shortly after filing his lawsuit, Owens notified the court he had been transferred to another prison. The district court denied IFP status, relying on its determination in the first lawsuit that Owens was three-strikes barred. The court further found that Owens did not qualify under section 1915(g)’s imminent-danger exception, noting that one of his alleged concerns about his safety was moot, given his transfer to another prison. The three-strikes determination is relevant to both appeals, and thus we grant Owens’s motion to consolidate the appeals. We have reviewed docket sheets and orders in the cases the district court listed as strikes in the first case. See Andrews v. King, 398 F.3d 1113, 1118 (9th Cir.2005) (reviewing de novo district court’s interpretation and application of § 1915(g)). The first case was dismissed without prejudice for failure to exhaust administrative remedies; such a dismissal is not a strike under section 1915(g). See Newingham v. Westbrook, 140 Fed.Appx. 634 (8th Cir.2005) (unpublished per cu-riam); see also Snider v. Melindez, 199 F.3d 108, 112 (2d Cir.1999). The dismissal of the second case as frivolous under 28 U.S.C. § 1915A(b) counted as a strike, but this court’s summary affirmance under Eighth Circuit Rule 47A(a) did not. See 28 U.S.C. § 1915(g) (describing a strike as “an action or appeal ... that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim”); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996) (only dismissal of appeal as frivolous counts as strike, whereas affir-mance of dismissal for frivolousness does not); Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir.1999) (same). Because we find that Owens has only one strike, we grant his motion for leave to proceed IFP in both appeals, leaving fee-collection details to the district court, see Henderson v. Norris, 129 F.3d 481, 484-85 (8th Cir.1997) (per curiam). Neither case was subject to dismissal under section 1915(g). We note that, in a footnote in the case underlying appeal No." }, { "docid": "23313935", "title": "", "text": "held that a dismissal for failure to prosecute was a strike where the circuit court had previously declared the appeal frivolous when it denied the prisoner’s motion to proceed ifp. The D.C. Circuit rejected as “hypertechnical” the prisoner’s argument that the appeal was “formally dismissed ... for failure to prosecute, rather than for frivolousness[, because b]ut for the judge declaring it frivolous, [the prisoner’s] appeal would have gone forward.” Id. In our view, the Seventh Circuit’s determination that the appeal in Government of the State of Israel was frivolous when it denied appellant’s motion for ifp can properly be termed the “but for” cause of that court’s subsequent dismissal, and we agree with the D.C. Circuit’s conclusion that it would be “hypertechnical” to hold that the resulting dismissal for nonpayment was not a strike. See Thompson, 492 F.3d at 433; see also O’Neal v. Price, 531 F.3d 1146, 1152 (9th Cir.2008) (holding that a “district court has ‘dismissed’ the prisoner’s case for purposes of § 1915(g) when the court denies the prisoner’s application to file the action without prepayment of the filing fee on the ground that the complaint is frivolous, malicious or fails to state a claim, and thereupon terminates the complaint” (quoting § 1915(g)). This strike also counts from May 26, 2009, when the Supreme Court dismissed appellant’s petition for writ of certiorari. See Hafed v. State of Israel, — U.S. -, 129 S.Ct. 2439, 174 L.Ed.2d 226 (2009) (Mem.) (No. 08-9403). Having concluded that appellant had three clear strikes as of May 26, 2009, before he filed No. 09-1365 on August 17, 2009, we do not address his arguments in that appeal on their merits. See Dubuc, 314 F.3d at 1208-10. B. Imminent-Danger Exception There is only one exception to the prepayment requirement in § 1915(g), Kinnell, 265 F.3d at 1127-28, and it applies to a prisoner who “is under imminent danger of serious physical injury!,]” § 1915(g). To meet that exception, appellant was required to make “specific, credible allegations of imminent danger of serious physical harm[.]” Kinnell, 265 F.3d at 1127-28 (quotations omitted). Every circuit to" }, { "docid": "14005196", "title": "", "text": "Clements, 688 F.3d 463, 465 (8th Cir. 2012); (2) whether the dismissal in [Doe] qualifies as a strike; see Ball, 726 F.3d at 460-63; (3) if these dismissals qualify as strikes, whether their timing precludes Appellant from proceeding in forma pauperis in this appeal; (4) if this Court decides that Appellant has three strikes, whether he is under imminent danger of serious physical injury for purposes of § 1915(g); and (5) if this Court decides that Appellant qualifies for in forma pauperis status on appeal, whether the District Court’s decision on appeal should be vacated. (A18-A19.) Millhouse did not object, and Stephen A.. Fogdall, Esq., and Emily J. Hanlon, Esq. were appointed as his pro bono counsel. II. The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We possess appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review with respect to the proper interpretation of the PLRA and its three strikes rule. See, e.g., Ball, 726 F.3d at 455 n.11. III. 28 U.S.C. § 1915(g) limits a prisoner’s ability to obtain IFP status: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that 'was dismissed on the grounds that it is frivolous, malicious, or fails to' state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. In Byrd v. Shannon, 715 F.3d 117 (3d Cir. 2013), we set forth our general approach for deciding what constitutes a strike under this provision of the PLRA: Thus, we adopt the following rule: a strike under § 1915(g) will accrue only if the entire action or appeal is (1) dismissed explicitly because it is “frivolous,” “malicious,” or “fails to state a claim” or (2) dismissed pursuant to a statutory provision or rule that is limited solely to- dismissals, for such reasons, including" }, { "docid": "23313928", "title": "", "text": "the State of Israel, No. 08-cv-00773-SEB-TAB (S.D.Ind. June 20, 2008); and (3) the Seventh Circuit’s dismissal of appellant’s appeal in Hafed v. Government of the State of Israel, No. 08-2744 (7th Cir. Jul. 11, 2008). i. First Strike Hafed v. Brooks was a civil rights suit appellant filed against three federal prosecutors and an FBI agent in the Southern District of Indiana on January 3, 2006. See D.C. No. 06-cv-00005-RLY-TAB, Doc. 1. On January 11, the district court granted ifp and dismissed the case without prejudice under § 1915A(b) because appellant alleged facts showing that he had no claim, that is, because the complaint failed to state a claim. See Brooks, D.C. No. 06-ev-00005-RLY-TAB, Doc. 4, at 2. The court held that appellant could not use a civil rights action to challenge his criminal detention, that he failed to allege the defendants’ personal participation in an alleged assault in prison, and that his claims alleging that the defendants violated his constitutional rights by causing him to be charged with a crime were premature under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because his criminal convictions had not been nullified. Brooks, D.C. No. 06-cv-00005, Doc. 4, at 2. In Jennings, we addressed whether dismissals under § 1915(e)(2)(B) should count as strikes, but we did not decide whether a district court’s dismissal subsequent to screening under § 1915A should count as a strike. See Jennings, 175 F.3d at 778-79. We now hold that a dismissal under § 1915A counts as a strike when the action was dismissed as frivolous, malicious, or for failure to state a claim, the same grounds listed in § 1915(g). The Southern District of Indiana’s dismissal in Brooks satisfies the standard for a strike under § 1915A(b)(l) and § 1915(g). At the time appellant brought his civil rights action in Brooks, he was “a prisoner ... detained in any facility” within the meaning of § 1915(g). “The PLRA defines ‘prisoner’ as ‘any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations" }, { "docid": "14005227", "title": "", "text": "Harrisburg County Police Department, 91 F.3d 451 (3d Cir. 1996), controls this case and allows us to equitably toll the two strikes that Millhouse has accrued pending our decision as to his IFP request. Thus, while I disagree with my colleagues’ interpretation of the Prisoner Litigation Reform Act (“PLRA”) and their conclusion that Heath II does not count as a strike, I agree that Millhouse only has one strike for the purpose of this appeal and thus his case should be remanded. DISCUSSION A. An IFP Action Commences with the Grant of IFP Status Section 1915(g) provides In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed qn the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. (emphases added). Millhouse filed his notice of appeal on May 26, 2015 and his request for IFP status on June 15, 2015. His subsequent strikes accrued after those dates when his complaints were dismissed—October 27, 2015 and February 24, 2016. See Coleman v. Tollefson, — U.S. —, 135 S.Ct. 1759, 191 L.Ed.2d 803 (2015) (strike accrues at dismissal). So when did Millhouse “bring” this appeal under the meaning of the PLRA? Was it May 26, 2015 when he filed it, or has it not yet 'begun because we have not granted him IFP status? This consideration sets up how to apply the three-strikes rule, as those strikes must constitute “prior occasions ... that [were] dismissed.” 28 U.S.C. § 1915(g) (emphasis added). If May 26, 2015 is the beginning date, the two strikes he has accrued since then cannot apply to bar him IFP status, On the other hand, if this appeal has yet to begin because his request for IFP status is pending, then those two strikes" }, { "docid": "23287460", "title": "", "text": "PER CURIAM. Ricky Ashley brought a 42 U.S.C. § 1983 action in July 1997, claiming that defendant prison officials caused him to suffer injury when they repeatedly placed him in proximity to inmates on his enemy alert list. The district court denied him in fotma pauperis (IFP) status under the “three strikes” provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), and dismissed his complaint without prejudice, and Ashley appeals. We reverse and remand for further proceedings. In denying leave to proceed IFP, the district court found that Ashley had made the requisite poverty showing under 28 U.S.C. § 1915(a), but that he had had at least three prior complaints dismissed as frivolous, had not alleged any facts to indicate he was under imminent danger of serious physical injury, and was thus ineligible for IFP status under section 1915(g) (prisoner may not bring civil action or appeal if prisoner has had three prior actions or appeals dismissed for frivolousness, maliciousness, or failure to state a claim, “unless the prisoner is under imminent danger of serious physical injury”). While denying Ashley leave to file his complaint IFP, the district court did grant him leave to proceed IFP on appeal. Ashley continues to argue that he is in imminent danger of physical injury by defendants’ repeated placement of him around his enemies. The in forma pauperis statute, 28 U.S.C. § 1915, was substantially amended by the Prison Litigation Reform Act of 1995. The purpose of the Act was to require all prisoner-litigants to pay filing fees in full, with the only issue being whether the inmate pays the entire filing fee at the initiation of the proceeding or in installments over a period of time. See Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.1997) (citing McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). Section 1915(g)) denies the installment payment method to those prisoners who have had three previous cases or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted (“three strikes”). We stress that the Act does not close" }, { "docid": "23010067", "title": "", "text": "that [1]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [proceedings in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. The plain language of § 1915(g) denies IFP status to prisoners who have had three or more civil actions dismissed as frivolous, malicious, or because the case fails to state a claim upon which relief can be granted, unless the inmate is in danger of serious physical injury. B. Rodriguez’s Status We have previously recognized that Rodriguez has had more than three claims dismissed as frivolous. See Rodriguez v. Cook, No. 96-36105, 1997 WL 723071, at *1 (9th Cir.1997) (affirming a district court dismissal under 28 U.S.C. § 1915(g) because “Rodriguez had at least six prior actions dismissed as frivolous”). In this case, Rodriguez does not allege that he is under imminent danger of serious physical injury and is therefore ineligible for IFP status. 28 U.S.C. § 1915(g). However, Rodriguez argues that this appeal should not be dismissed under § 1915(g) because, although he may have had three or more civil cases dismissed as frivolous, he has not had three or more appeals dismissed as frivolous. Rodriguez asks this court to read the three-strike rule to require three or more frivolous appeals before precluding IFP status for appeals. There is no support for this argument. Indeed, the plain language of § 1915(g) precludes IFP status for a “civil action or appeal” if the prisoner has brought three or more “action[s] or appeal[s].” § 1915(g) (emphasis added). Rodriguez has had more than three actions dismissed as frivolous and is therefore denied IFP status for civil actions or appeals. Moreover, Rodriguez’s interpretation of § 1915(g) would inhibit its purpose by giving" }, { "docid": "21592718", "title": "", "text": "between the claims he seeks to pursue and the imminent danger he alleges. For the following reasons, we conclude that such a nexus exists when the three-strikes litigant seeks to redress an imminent danger of serious physical injury that is fairly traceable to a violation of law that the complaint asserts. * * * We begin, as we must, with the plain text of the Prison Litigation Reform Act (“PLRA”). United States v. Gayle, 342 F.3d 89, 92 (2d Cir.2003) (“Statutory construction begins with the plain text and, if that text is unambiguous, it usually ends there as well.”). Prisoners who do not have the financial resources to prepay docketing fees may proceed IFP. See 28 U.S.C. § 1915(a)-(b). However, the PLRA contains a “three-strikes” rule that bars prisoners from proceeding IFP if they have a history of filing frivolous or malicious lawsuits unless the exception for imminent danger applies. The statute reads as follows: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). This Court has previously held that for a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint — in other words, a three-strikes litigant is not excepted from the filing fee if he alleges a danger that has dissipated by the time a complaint is filed. Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir.2002); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir.2001) (en banc); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir.1999); Banos v. O’Guin, 144 F.3d 883, 884-85 (5th Cir.1998) (per curiam); Ashley v. Dilworth, 147 F.3d 715, 717 (8th" }, { "docid": "8908154", "title": "", "text": "is identical to that of § 1915(g) (“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding” if he has accumulated three strikes). We now hold that, if a mandamus petition arising from an underlying civil case is dismissed as frivolous, that dismissal counts as a “strike” for purposes of § 1915(g). Accordingly, Jacobs is hereby informed that the dismissal of this mandamus action as frivolous counts as a strike for purposes of § 1915(g). We caution Jacobs that once he accumulates three strikes, he may not proceed IFP either in any civil action or in any appeal of a civil action, including a mandamus petition challenging district court action in an underlying civil suit, which is filed while he is incarcerated or detained in any facility, unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). IFP GRANTED; PETITION FOR MANDAMUS DISMISSED AS FRIVOLOUS; THREE-STRIKES WARNING ISSUED. . The nature of the underlying action, determines whether the fee requirements of the PLRA are to apply in mandamus cases. In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997). Because the underlying action here is a civil case, the PLRA fee requirements apply. See 28 U.S.C. § 1915(b). . This amount represents 20% of Jacobs's six-month average balance as shown on the in mate trust fund account statement he has submitted. . Jacobs's mandamus petition references three other pending cases in the Southern District of Texas, Nos. 4:99-CV-754, 4:99-CV-1979, and 4:99-CV-2720. Because a mandamus petition may reference only one district court action, we do not address Jacobs’s allegations concerning these other suits. We note that two of those cases have been the subject of other mandamus petitions in this court, Nos. 00-20217 and 99-21118, which have been administratively closed. . See also Santee v. Quinlan, 115 F.3d 355, 355 (5th Cir.1997) (holding that the fee provi sions of § 1915(a)(2) apply to mandamus actions that arise from civil actions in district court)." }, { "docid": "21431590", "title": "", "text": "prior to the PLRA, federal courts could exempt indigent prisoners from paying filing fees. Ibrahim v. District of Columbia, 208 F.3d 1032, 1033 (D.C.Cir.2000). Under the PLRA, however, prisoners whom courts allow to proceed IFP must pay the entire fee over time, though they need not prepay in full for the action or appeal to commence. 28 U.S.C. § 1915(a), (b). Second—and central to the issues before us—the PLRA limits courts’ discretion to grant IFP status to prisoners with a track record of frivolous litigation. Known as the “three strikes” provision, it requires that: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Michael Thompson and Charles Thompson, both prisoners subject to the PLRA, move for leave to appeal IFP. See Fed. R. App. P. 24(1)(5). Because neither contends that he is “under imminent danger of serious physical injury,” the sole question before us is whether either of the two prisoners has accrued three strikes prior to this appeal. Michael Thompson has seven actions and appeals that could qualify as strikes. One is the case he seeks to appeal here—a suit against the U.S. Drug Enforcement Agency under the Freedom of Information Act, 5 U.S.C. §§ 552 et seq., and the Privacy Act, 5 U.S.C. § 552a. The district court dismissed that complaint in part on res judicata grounds and in part for failure to exhaust administrative remedies. Michael A Thompson v. DEA, No. 04-1118, slip op. at 2-4 (D.D.C. Oct. 28, 2004). Before the instant action and appeal, Michael Thompson had, according to the record before us, filed the following federal actions and appeals: • a suit against" }, { "docid": "19063970", "title": "", "text": "any time if the court determines that ... the action or appeal is frivolous or malicious.” 28 U.S.C. § 1915(e)(2)(B)(i) (emphasis added). Thus, a frivolous complaint — one that “lacks an arguable basis either in law or in fact” — must be dismissed pursuant to § 1915(e)(2)(B)®. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). B. Plaintiffs Complaint must be dismissed as frivolous because he may not bring a civil suit to recover damages for harm caused by actions whose unlawfulness would render his first-degree murder conviction invalid. In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court held that one who has been convicted of a crime may not ordinarily recover damages pursuant to 42 U.S.C. § 1983 for “harm caused by actions whose unlawfulness would render [his] conviction or sentence invalid.” Id. at 486, 114 S.Ct. 2364. The only qualification to this otherwise broad prohibition is if the plaintiff can “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. From this rule emerges the following directive: “[T]he 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. Although Heck, on its face, addresses only actions brought under § 1983, the United States Court of Appeals for the District of Columbia Circuit has expanded the contours of Heck to reach § 1983’s federal analog, the Bivens claim. See Williams v. Hill, 74 F.3d 1339, 1340-41 (D.C.Cir.1996) (per curiam); see also Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir.1995) (per curiam) (extending Heck to Bivens actions); Tavarez v. Reno, 54 F.3d 109" }, { "docid": "4078763", "title": "", "text": "n. 10 (2d Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1689, 131 L.Ed.2d 554 (1995); Ellis v. Blum, 643 F.2d 68, 84 (2d Cir.1981). The Supreme Court recently held that in order to recover damages for an unconstitutional conviction or imprisonment, a § 1983 plaintiff must demonstrate 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_” Heck v. Humphrey, — U.S. —, —, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994). A claim for damages based on a conviction or sentence that has not been invalidated as described above is not cognizable under § 1983. Id.; see also Cameron, 806 F.2d at 386-89. Given the similarity between suits under § 1983 and Bivens, we conclude that Heck should apply to Bivens actions as well. See Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir.1994) (per curiam). In the instant case, Tavarez has not demonstrated that his conviction has been invalidated in any manner. Accordingly, because “Heck dictates that a cause of action seeking damages under § 1983 for an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated,” id. at 27-28, the district court correctly dismissed Tavarez’s action as not cognizable. This Court may grant a party permission to proceed in forma pauperis if satisfied that an appeal is not frivolous. 28 U.S.C. § 1915(d). An appeal is frivolous where it lacks an arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989). Because any appeal from this judgment would be frivolous, we deny Tavarez’s motion for leave to appeal informa pauperis and dismiss his appeal. CONCLUSION Based on the foregoing, the motion is denied and the appeal is dismissed." }, { "docid": "22157703", "title": "", "text": "Carson’s complaint was properly characterized as a civil rights suit under 42 U.S.C. § 1983 and dismissed it as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The court then sanctioned Carson $250 for his frequent filing of frivolous complaints and barred him from further filings under 28 U.S.C. § 1915(g). The district court granted Carson leave to proceed IFP on appeal. Pursuant to Jackson v. Stinnett, 102 F.3d 132, 136-37 (5th Cir.1996), Carson has paid the partial filing fees required by 28 U.S.C. § 1915(a)-(b), as amended by the PLRA. II. A. Section 804(c) of the PLRA added § 1915(g), which prohibits a prisoner from proceeding IFP if he has had three actions or appeals dismissed for frivolousness, maliciousness, or failure to state a claim. See Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir.1996). This provision often is referred to as the ‘“three strikes’ provision.” Id. It states: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner, is under imminent danger of serious physical injury. B. In considering the effect of the “three strikes” provision, we first must determine whether Carson’s action falls under the PLRA’s definition of “a civil action or proceeding.” This requires us to determine (1) whether the PLRA applies to a habeas petition under 28 U.S.C. § 2254 and (2) whether Carson’s action is properly characterized as a habeas petition or a § 1983 suit. The PLRA requirements do not apply to habeas actions under 28 U.S.C. § 2255. See United States v. Cole, 101 F.3d 1076, 1077 (5th Cir.1996). We gave three reasons for this conclusion. First, “habeas proceedings are often determined to be outside the reach of the phrase ‘civil action.’” Id. (quoting Santana v." } ]

[ { "docid": "8348096", "title": "", "text": "MEMORANDUM O’NEILL, District Judge. In this action , plaintiffs, former depositors at Sunrise Savings and Loan Association of Florida (“Old Sunrise”) and Sunrise Savings and Loan Association, a Federal Savings and Loan Association (“New Sunrise”), allege violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, common law fraud, deceit and intentional misrepresentation by former officers, directors, general counsel and independent auditors of Old Sunrise. Presently before the Court are motions for summary judgment by a number of defendants in the Depositors case. These motions concern the legal limitations on a depositor’s right to recover funds lost upon a thrift’s insolvency through claims against a thrift’s officers, directors, outside legal counsel and auditors. The moving defendants argue that the depositor plaintiffs cannot establish that defendants’ alleged acts and omissions legally caused plaintiffs’ losses because the losses occurred due to the insolvency of New Sunrise, not of Old Sunrise. Blank Rome also argues that the claims asserted by the depositor plaintiffs are derivative and therefore can be asserted only by FSLIC, the receiver of New Sunrise, not by the depositors individually. In addition, FSLIC contends that recognition of the claims asserted by the depositor plaintiffs would disrupt the federal regulatory scheme established to ensure efficient and equitable distribution of an insolvent thrift’s assets among all its creditors. Background Plaintiffs Anne and George Popkin purchased five six-month certificates of deposit from Old Sunrise on October 11, 1984, each in the amount of $100,000. Memoran dum in Support of Outside Directors’ Motion for Summary Judgment, Exhibit B (Affidavit of Linda Raflowitz), 117(a); Deposition of George Popkin (July 12, 1988), Addendum. In order to ensure that their deposits would be covered by FSLIC insurance, the Popkins purchased their certificates in the names of: George Popkin; Anne Popkin; George Popkin in trust for Anne Popkin; Anne Popkin in trust for George Popkin; and George or Anne Pop-kin. Popkin Deposition, at 17-18. When their certificates matured on April 11, 1985, the Popkins withdrew all interest earned on the certificates, and rolled over the principal into five one-year $100,000 certificates of deposit with" } ]

[ { "docid": "8348113", "title": "", "text": "general public, he or she does not allege a wrong that is distinctly the depositor’s and not common to other depositors or creditors, and therefore claims an indirect injury. To the extent the Popkins claim that defendants failed to reveal their wrongdoing against Old or New Sunrise to depositors, then, they have asserted a derivative claim belonging to FSLIC, receiver for Old and New Sunrise. As in Douglass, the Popkins’ complaint alleges that defendants failed to inform depositors and the public that their mismanagement and self-dealing had injured Old Sunrise and made it unsafe. The Popkins allege that defendants “withheld from state and federal regulators and the public, including plaintiffs and class members” information that defendants had caused Old Sunrise to pursue risky and unsafe loan strategies, certain defendants engaged in self-dealing transactions with Old Sunrise, and that defendants caused Old Sunrise to misrepresent the quality of its loan portfolio. Complaint, ¶¶ 21-25, 28. These alleged actions, if they occurred, directly injured Old or New Sunrise; defendants’ alleged failure to inform depositors that they had engaged in these actions only indirectly injured the depositors. In their Opposition to Blank Rome’s Motion for Summary Judgment, the Popkins argue that they have not asserted derivative claims because they “lost a portion of their personal savings” and seek to enforce a purportedly individual “right to receive the principal and/or interest lost from their own accounts and certificates of deposit.” Plaintiffs’ Memorandum in Opposition to Motion of Blank Rome for Summary Judgment, at 10; see also, at 2, 4, 5, 7. But when determining if a depositor’s claim is derivative, the relevant question is whether the depositor has suffered an individual injury, not whether the depositor has lost a portion of his or her “personal” savings. For example, in Longhorn, Michelsen and Douglass, each of the depositor plaintiffs whose claims were dismissed as derivative had suffered losses of “personal” savings from his or her own account. Longhorn, 573 F.Supp., at 272-273; Michelsen, 10 F.Supp., at 538-539; Douglass, 130 S.E., at 196. The Popkins also allege that defendants withheld information that Old Sunrise “was not" }, { "docid": "8348119", "title": "", "text": "of FSLIC in Support of Certain Defendants’ Motions for Summary Judgment, at 13-14 (noting that New Sunrise had different management, directors, outside legal counsel and independent auditors than Old Sunrise). The Popkins argue that their purchase of New Sunrise certificates on April 11, 1986 was only a “rollover” of the certificates they had purchased from Old Sunrise, not a new investment in New Sunrise. But it is undisputed that when the Popkins’ former Old Sunrise certificates matured on April 11,1986, the Popkins could have withdrawn without penalty the full amount of their deposit plus interest and invested the funds elsewhere. Indeed, George Popkin testified in his deposition that on April 11,1986, he and his wife withdrew from New Sunrise the interest accrued on the certificates and deposited it in one or more other banks. Popkin Deposition, at 34-35. Under these circumstances, the deposit on which the Popkins suffered their losses must be considered to have occurred on April 11,1986, when the Popkins purchased their New Sunrise certificates. As a result, the Popkins suffered no losses due to the insolvency of Old Sunrise, and they cannot maintain an action on the basis of any representations or omissions defendants allegedly made concerning the financial condition of Old Sunrise. The Popkins and other New Sunrise depositors are not left without a remedy for their losses. To the extent that FSLIC, the receiver for New Sunrise, has not already asserted the claims made by the Popkins in this action, the Popkins or other depositors may demand FSLIC to pursue these claims, and may file a derivative action if FSLIC refuses. See supra, n. 7. In addition, pursuant to the agree ments under which Old Sunrise’s claims against its officers, directors, attorneys, accountants and appraisers were assigned to FSLIC Corporate, New Sunrise depositors and other creditors will receive distributions from FSLIC Corporate’s recoveries against these parties after certain other expenses and claims are paid. See Memorandum of FSLIC in Support of Certain Defendants’ Motions for Summary Judgment, Exhibit D (Receiver’s Agreement Between FSLIC Receiver and FSLIC Corporate), Exhibit E (Purchase Agreement Between FSLIC Corporate and" }, { "docid": "5222800", "title": "", "text": "Anne Popkin, George Popkin in trust for Anne Popkin, Anne Popkin in trust for George Popkin, and George or Anne Popkin. Popkin asserts that at the time of purchase, he requested a financial statement for Old Sunrise and that he received a statement for the period ending June 1988. On April 11, 1985, the certificates matured. The Popkins withdrew the interest and rolled over the principal into five one-year $100,000 certificates. On July 18,1985, the Federal Home Loan Bank Board (“Bank Board”) declared Old Sunrise insolvent, appointed FSLIC as receiver, and organized New Sunrise, the federal mutual association to which Old Sunrise’s assets and liabilities were transferred. Defendants were not involved in the establishment or operation of New Sunrise. A new board of directors, auditor, and general counsel were appointed, and Ameri-First Federal Savings and Loan Association was hired as management advisor. Plaintiffs have acknowledged that none of the Old Sunrise depositors lost any portion of their Old Sunrise deposits, including those whose deposits exceeded the insurance limit of $100,000 prescribed under 12 C.F.R. § 564.3. In re Sunrise Securities Litigation, 108 B.R. at 474 & n. 4. On July 19, 1985, The Wall Street Journal and The New York Times ran articles on the Bank Board’s takeover and the financial problems that led to Old Sunrise’s failure. The Wall Street Journal reported that the Bank Board “will give the new Sunrise an undisclosed amount of promissory notes sufficient to make the thrift technically solvent ... in exchange for IOUs that don’t have to be repaid until the thrift returns a profit.” The New York Times reported that the Bank Board, through FSLIC, “would issue promissory notes to the new thrift institution to insure it was financially solvent.” In a letter dated July 30, 1985, the president of New Sunrise informed depositors of the insolvency of Old Sunrise, the transfer of accounts to New Sunrise, and the retention of AmeriPirst as management ad-visor. The letter stated that the Bank Board had provided New Sunrise “with the financial resources to insure its stability and solvency” and that “the result of the" }, { "docid": "8348129", "title": "", "text": "Michel-sen. . As discussed infra, the Popkins’ complaint does not assert such a claim, but rather alleges that the defendants attracted deposits from the Popkins and others by misrepresentations and omissions regarding Old Sunrise’s financial condition and defendants’ management of Old Sunrise. To the extent the Popkins argue in their Memorandum in Opposition to Motions for Summary Judgment that they assert claims that defendants’ wrongdoing caused New Sunrise’s insolvency, such claims are derivative, and cannot be asserted by the Popkins. In Exhibit B to Plaintiffs’ Memorandum in Opposition to Motions for Summary Judgment, counsel for the Popkins seeks discovery under Rule 56(f) concerning six issues, all related to defendants’ alleged misconduct and its relationship to New Sunrise’s demise. But because any claim that defendants’ misconduct caused New Sunrise to become insolvent belongs to FSLIC as receiver for New Sunrise, this affidavit sets forth no basis for denying summary judgment or continuing discovery under 56(f). . Within the Popkins’ Complaint, the term \"Sunrise\" is used to refer to Sunrise Savings and Loan Association of Florida, referred to as “Old Sunrise\" in this Memorandum. Complaint, ¶ 4. . In Bane v. Powell, 192 N.C. 387, 135 S.E. 118 (1926), the plaintiff alleged that \"defendants, as officers and directors, knew that [the] bank was then and had been for a long time insolvent, unable to meet its obligations, and unsafe. With such knowledge, defendants wrongfully received or wrongfully permitted employees of the bank to receive [plaintiffs] deposit.” 135 S.E., at 119. The Court held that this allegation stated a claim of an individual direct injury suffered by the depositor plaintiff: It is not alleged in the complaint in the instant action that defendants, as its officers and directors, by their negligence or wrongful acts, caused the bank to become, or to be, insolvent, as was the case in Douglass v. Dawson. The bank suffered no loss by the wrongful act of defendants, with respect to the reception of plaintiff's deposit, and therefore has sustained no damage.... Plaintiff’s loss, resulting from defendant’s wrongful act, was the bank’s gain. 135 S.E., at 119. See also" }, { "docid": "5222801", "title": "", "text": "564.3. In re Sunrise Securities Litigation, 108 B.R. at 474 & n. 4. On July 19, 1985, The Wall Street Journal and The New York Times ran articles on the Bank Board’s takeover and the financial problems that led to Old Sunrise’s failure. The Wall Street Journal reported that the Bank Board “will give the new Sunrise an undisclosed amount of promissory notes sufficient to make the thrift technically solvent ... in exchange for IOUs that don’t have to be repaid until the thrift returns a profit.” The New York Times reported that the Bank Board, through FSLIC, “would issue promissory notes to the new thrift institution to insure it was financially solvent.” In a letter dated July 30, 1985, the president of New Sunrise informed depositors of the insolvency of Old Sunrise, the transfer of accounts to New Sunrise, and the retention of AmeriPirst as management ad-visor. The letter stated that the Bank Board had provided New Sunrise “with the financial resources to insure its stability and solvency” and that “the result of the Bank Board’s action is a stable, solvent Sunrise Savings.” Popkin claims that he neither saw the newspaper articles nor received the July 30 letter. He contends that he remained unaware of Old Sunrise’s insolvency until July 1986. In the meantime, on April 11, 1986, the Popkins’ Old Sunrise certificates matured. The Popkins withdrew their interest and rolled over the principal into five $100,000 one-year certificates with New Sunrise. They elected to receive their interest quarterly rather than at maturity. Nonetheless, they did not withdraw the interest when it was posted the following quarter. On September 12, 1986, the Bank Board declared New Sunrise insolvent and temporarily froze all accounts. In October 1986, FSLIC transferred the insured deposits to Beach Federal Savings and Loan Association and issued certificates of claim for the uninsured interest that had accrued between April 1986 and September 1986 on each of the Popkins’ five certificates. Since July 1988, FSLIC has made three partial distributions of proceeds to New Sunrise depositors, including the Popkins, amounting to a total of 43.45% of their" }, { "docid": "10110102", "title": "", "text": "Rule 10b-5. Plaintiff alleges that defendants knowingly or recklessly made material misrepresentations which inflated the market price for Bell stock, and that he relied on the market price as reflecting Bell’s true value. As a result, plaintiff claims to have suffered injury as a stock purchaser. III. We do not understand the defendants or the RTC to seriously dispute the principles of securities law we have reviewed in the foregoing section. Rather they contend that the controlling authority is In re Sunrise, 916 F.2d 874 (3d Cir.1990). In Sunrise, plaintiffs were depositors in an insolvent savings and loan association, “Old Sunrise,” who alleged that the directors, officers, attorneys, and auditors of Old Sunrise had violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68 (1988), and state law. Plaintiffs claimed that defendants misrepresented Old Sunrise as “well run and secure” and failed to disclose that it had serious financial problems caused by mismanagement. These misrepresentations, they alleged, induced them to purchase certificates of deposit from Old Sunrise in 1984. Old Sunrise was declared insolvent in 1985, and the Federal Savings and Loan Insurance Corporation, as receiver, transferred Old Sunrise’s assets and liabilities to “New Sunrise.” Neither the plaintiffs nor any other depositors in Old Sunrise lost any portion of their deposits. When plaintiffs’ certificates matured in 1986, they withdrew the interest and rolled over the principal into certificates with New Sunrise. New Sunrise subsequently became insolvent and plaintiffs did not recover all of the uninsured interest on their certificates. Id. at 875-77. Applying Florida law, we held that plaintiffs could not assert individual RICO claims against the officers and directors of Old Sunrise because their injury — loss of uninsured interest — resulted from mismanagement and insolvency, not misrepresentation. Id. at 887. Finding the injury “inextricably linked to the insolvency of New Sunrise” id., we held that the claim plaintiffs sought to assert belonged to the corporation and could be pursued by plaintiffs only in a derivative suit. That holding does not control the present case, however. In Sunrise, plaintiff-depositors alleged mismanagement and failure to disclose mismanagement." }, { "docid": "8348099", "title": "", "text": "and conditions, including maturity dates and early withdrawal penalties, established when the accounts were opened. Raflowitz Affidavit, H 3. When their certificates matured on April 11, 1986, the Popkins received the full amount of principal and interest due. Raf-lowitz Affidavit, 1Í 7(c); Popkin Deposition, at 37-39. The Popkins withdrew the interest and rolled over the principal into five new one-year $100,000 certificates with New Sunrise, each in the amount of $100,-000. Raflowitz Affidavit, 117(c); Popkin Deposition, at 35. On September 12, 1986, the FHLBB declared New Sunrise insolvent and appointed FSLIC as receiver. By early October 1986, the Popkins’ five accounts were reopened at Beach Federal Savings and Loan Association, the successor to New Sunrise; each certificate was opened in the amount of $100,000, reflecting the insured amount in each of the Popkins’ New Sunrise certificates. Raflowitz Affidavit, 117(e); Popkin Deposition, Addendum. In early October 1986, FSLIC acknowledged and treated as uncontested the claim of each New Sunrise account holder for the uninsured portion of his or her deposit. Memorandum of FSLIC in Support of Certain Defendants’ Motions for Summary Judgment, at 9. The Popkins were issued five Certificates of Claim in Liquidation of New Sunrise in the amount of $3,322.43, reflecting the $3,322.43 in interest earned per certificate between April 11 and September 12, 1986. Memorandum of FSLIC in Support of Certain Defendants’ Motions for Summary Judgment, Exhibit B; Popkin Deposition, at 54-55. FSLIC has made three partial distributions of proceeds from liquidation of New Sunrise assets to all New Sunrise account holders who had uninsured deposits, including the Popkins: on July 6, 1988, 34.2785% of each depositor’s claim; on December 28, 1988, 5.059548%; and on June 6, 1989, 4.1097%. Memorandum of FSLIC in Support of Certain Defendants’ Motions for Summary Judgment, at 9-10, Exhibit C. As of the date of this Memorandum, FSLIC has distributed to each New Sunrise account holder a total of 43.45% of his or her uninsured deposit. The Popkins currently have outstanding claims of losses of $1,878.92 per certificate, or a total of $9,394.60. Memorandum of FSLIC in Support of Certain Defendants’ Motions for" }, { "docid": "8348122", "title": "", "text": "injury distinct from that suffered by New Sunrise’s other creditors, and therefore are not entitled to the priority over other creditors’ claims which they would receive if they successfully pursued the claims they have asserted in this action. Defendants’ motions for summary judgment will be granted, and the Popkins’ complaint will be dismissed. . Three groups of claims have been consolidated for pretrial proceedings in this multidistrict litigation: state common law and Securities Exchange Act of 1934 claims asserted by Old Sunrise shareholders (the \"Securities case”); fiduciary duty claims asserted by the Federal Savings and Loan Insurance Corporation (\"FSLIC”) in its corporate capacity (the \"Fiduciary Duty case”); and state common law and civil RICO claims asserted by former Old Sunrise depositors (the \"Depositors case”). The present motions concern the Depositors case only. . The following defendants have moved for summary judgment in the Depositors case: Alan B. Keiser, Nathaniel B. Jacobs, Robert Logsdon, Robert T. Siemon, George Greenberg, Lake Ly-tal and Bernard Simonson (the \"Outside Directors” of Old Sunrise); Deloitte Haskins & Sells; Robert C. Jacoby; M. Kalman Gitomer; Michael D. Foxman; and Blank, Rome, Comi-sky & McCauley (“Blank Rome”). .FSLIC was dissolved by the recently enacted Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub.L. No. 101-73, § 401, 103 Stat. 183, 354 (1989). In order to minimize confusion, the term \"FSLIC\" will be used in this memorandum to refer to FSLIC and its successor agency under the FIR-REA. . The Popkins allege in their complaint that when Old Sunrise depositors' accounts were transferred to New Sunrise, ”[a]II amounts standing in each depositor’s account or certificate of deposit in excess of $100,000 were lost.” Complaint, ¶ 30. The Outside Directors of Old Sunrise disputed this allegation in their opposition to plaintiffs’ motion for class certification. In my Order of April 17, 1989, regarding plaintiffs’ motion for class certification, I directed the parties to submit “any additional evidence relevant to the question of whether depositors suffered any losses as a result of the transfer of accounts from Old Sunrise to New Sunrise.” The Popkins submitted a memorandum in" }, { "docid": "8348128", "title": "", "text": "and have not alleged an unsuccessful demand on FSLIC, the receiver for New Sunrise, to bring suit. See Complaint. . The Popkins represent that the depositor plaintiffs in Brandenburg subsequently moved to file their complaint in state court and, after briefing concerning whether their claims were derivative of the receiver’s, were granted leave to file their complaint. Plaintiffs’ Reply to the Memorandum of FSLIC Regarding Summary Judgment, at 9. But this information, in and of itself, provides no basis for distinguishing or declining to follow Brandenburg: the state Court does not state the reasoning behind its decision in its Order; and the Popkins have not submitted the complaint or the motion in question to this Court, either of which might allow me to determine whether the state court faced the same question as the Brandenburg Court. In any event, even if the state court held, in effect, that the claims asserted in Brandenburg were not derivative, I would decline to follow the state court, since the Brandenburg Court’s ruling is in accord with Longhorn and Michel-sen. . As discussed infra, the Popkins’ complaint does not assert such a claim, but rather alleges that the defendants attracted deposits from the Popkins and others by misrepresentations and omissions regarding Old Sunrise’s financial condition and defendants’ management of Old Sunrise. To the extent the Popkins argue in their Memorandum in Opposition to Motions for Summary Judgment that they assert claims that defendants’ wrongdoing caused New Sunrise’s insolvency, such claims are derivative, and cannot be asserted by the Popkins. In Exhibit B to Plaintiffs’ Memorandum in Opposition to Motions for Summary Judgment, counsel for the Popkins seeks discovery under Rule 56(f) concerning six issues, all related to defendants’ alleged misconduct and its relationship to New Sunrise’s demise. But because any claim that defendants’ misconduct caused New Sunrise to become insolvent belongs to FSLIC as receiver for New Sunrise, this affidavit sets forth no basis for denying summary judgment or continuing discovery under 56(f). . Within the Popkins’ Complaint, the term \"Sunrise\" is used to refer to Sunrise Savings and Loan Association of Florida, referred" }, { "docid": "8348098", "title": "", "text": "Old Sunrise. Complaint, 113; Raflowitz Affidavit, 117(b); Popkin Deposition, at 17. On July 18,1985, the Federal Home Loan Bank Board (“FHLBB”) determined that Old Sunrise was insolvent and appointed the FSLIC as receiver. That same day, FSLIC as receiver organized a new federal savings and loan association, New Sunrise, and transferred substantially all of the Old Sunrise assets and liabilities, including the full amounts of deposits in interest-bearing accounts and certificates of deposit, to New Sunrise. See Order of July 29, 1987 (dismissing certain counterclaims of Blank Rome against FSLIC; MDL 655 Docket # 524), at 1; Order of July 29, 1987 (striking certain defenses of the outside directors; MDL 655 Docket # 525), at 1. No Old Sunrise depositors, including the Pop-kins, lost any portion of their deposits or interest when their Old Sunrise accounts were transferred to New Sunrise, even if their deposits exceeded the insurance limit of $100,000 under 12 C.F.R. §§ 564.3 and 564.4. Raflowitz Affidavit, 113. Former Old Sunrise accounts transferred to New Sunrise remained subject to the same terms and conditions, including maturity dates and early withdrawal penalties, established when the accounts were opened. Raflowitz Affidavit, H 3. When their certificates matured on April 11, 1986, the Popkins received the full amount of principal and interest due. Raf-lowitz Affidavit, 1Í 7(c); Popkin Deposition, at 37-39. The Popkins withdrew the interest and rolled over the principal into five new one-year $100,000 certificates with New Sunrise, each in the amount of $100,-000. Raflowitz Affidavit, 117(c); Popkin Deposition, at 35. On September 12, 1986, the FHLBB declared New Sunrise insolvent and appointed FSLIC as receiver. By early October 1986, the Popkins’ five accounts were reopened at Beach Federal Savings and Loan Association, the successor to New Sunrise; each certificate was opened in the amount of $100,000, reflecting the insured amount in each of the Popkins’ New Sunrise certificates. Raflowitz Affidavit, 117(e); Popkin Deposition, Addendum. In early October 1986, FSLIC acknowledged and treated as uncontested the claim of each New Sunrise account holder for the uninsured portion of his or her deposit. Memorandum of FSLIC in Support of" }, { "docid": "8348102", "title": "", "text": "U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Supreme Court has held that the Rule mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The parties who have submitted briefs supporting the motions for summary judgment argue that there are three different bases for summary judgment against the Popkins: the Popkins cannot establish that the defendants’ alleged acts proximately caused the Popkins’ losses; the Popkins’ claims are derivative and can be asserted only by FSLIC, the receiver of New Sunrise, not by the Popkins or other depositors individually; and recognition of the Pop-kins’ claims would disrupt the federal regulatory scheme established to ensure efficient and equitable distribution of an insolvent thrift’s assets among all its creditors. I find that, to the extent that the Popkins seek to recover on the bases that defendants’ alleged wrongdoing caused New Sunrise to fail, or that defendants made misrepresentations to conceal and omitted to reveal that defendants had injured Old or New Sunrise, they have asserted derivative claims belonging to FSLIC. To the extent that the Popkins seek to recover on the basis that defendants misrepresented Old Sunrise’s financial condition, I find that the Popkins cannot establish that any such representations caused their losses. Federal jurisdiction over this action is based on the Popkins’ RICO claim. Complaint, ¶ 1. To recover under RICO, the Popkins must establish that they have standing: “the plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). The question posed by Blank Rome is whether the Popkins and the class of depositors they seek to represent “have suffered any individual injury to their property that" }, { "docid": "8348123", "title": "", "text": "Jacoby; M. Kalman Gitomer; Michael D. Foxman; and Blank, Rome, Comi-sky & McCauley (“Blank Rome”). .FSLIC was dissolved by the recently enacted Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub.L. No. 101-73, § 401, 103 Stat. 183, 354 (1989). In order to minimize confusion, the term \"FSLIC\" will be used in this memorandum to refer to FSLIC and its successor agency under the FIR-REA. . The Popkins allege in their complaint that when Old Sunrise depositors' accounts were transferred to New Sunrise, ”[a]II amounts standing in each depositor’s account or certificate of deposit in excess of $100,000 were lost.” Complaint, ¶ 30. The Outside Directors of Old Sunrise disputed this allegation in their opposition to plaintiffs’ motion for class certification. In my Order of April 17, 1989, regarding plaintiffs’ motion for class certification, I directed the parties to submit “any additional evidence relevant to the question of whether depositors suffered any losses as a result of the transfer of accounts from Old Sunrise to New Sunrise.” The Popkins submitted a memorandum in response, stating that ”[p]laintiffs accept the representation made by FSLIC and the defendants that injury to the depositors did not occur at that time [i.e., when Old Sunrise accounts were transferred to New Sunrise], and instead occurred at the time of failure of New Sunrise shortly thereafter.” Plaintiffs’ Submission in Response to the Court’s Order of April 17, 1989, at 1. . Courts consistently have required individual plaintiffs to assert nonderivative claims of individual direct injuries to recover under RICO. See, e.g., Crocker, 826 F.2d at 348-353 (shareholders’ claim under RICO that defendants’ action caused shareholders’ stock to decline in value was derivative and could not be maintained by shareholders individually); Rand v. Anaconda-Ericsson, Inc., 794 F.2d 843, 849 (2d Cir.), cert. denied, 479 U.S. 987, 107 S.Ct. 579, 93 L.Ed.2d 582 (1986) (shareholder plaintiffs could not maintain RICO action because action belonged to corporation: ”[a]ny decrease in value of plaintiffs’ shares merely reflects the decrease in value of the firm as a result of the alleged illegal conduct”); Carter, 777 F.2d at 1174-1176 (individual" }, { "docid": "8348117", "title": "", "text": "F.2d, at 757. The Court stated that “[t]hose who deposit funds after a bank is hopelessly insolvent can show a specific act of fraud that affects only them, and therefore they have a superior equitable position over others who deposited funds prior to hopeless insolvency with a hope or belief in the bank’s future ability to repay the deposit.” 879 F.2d, at 762. Nevertheless, the Court declined to recognize the plaintiffs’ claim because it would disrupt the federal regulatory receivership scheme: Even in the case of hopeless insolvency, however, full restitution may be denied when it would sufficiently disrupt the orderly administration of the receiver’s estate or otherwise result in inequitable treatment to other similarly situated depositors. ... We do not think that Congress would have intended to deluge the FDIC with the potentially crushing weight of claims for preferences on behalf of all the uninsured depositors who could allege that they relied upon misleading information that was available to all depositors. Allowing such a preference to be based upon a “race of diligence” among creditors would make “the equality promised to them by the [National Bank Act] a mere mockery.” 879 F.2d, at 763-764 (citations omitted). I need not determine whether the Popkins’ allegations that defendants misrepresented Old Sunrise’s financial condition state a recognizable claim of individual injury, however, because undisputed facts establish that the Popkins have suffered no losses as a result of any such misrepresentations or omissions, and therefore that summary judgment is appropriate for any RICO claim the Popkins might assert based solely on these allegations. It is undisputed that neither the Popkins nor any other depositors lost any money when Old Sunrise was declared insolvent. See supra, n. 4. After New Sunrise was declared insolvent in September, 1986, the Popkins suffered their loss on certificates of deposit they had purchased from New Sunrise on April 11, 1986. The Popkins do not dispute that the defendants in this action had no connection to New Sunrise, and they do not allege that the defendants ever made any representations regarding the financial condition of New Sunrise. See Memorandum" }, { "docid": "5222799", "title": "", "text": "losses. Moreover, the district court found that to the extent plaintiffs had alleged that defendants’ wrongdoing caused the demise of New Sunrise or that defendants misrepresented and failed to reveal that they had injured Old or New Sunrise, plaintiffs had asserted a derivative claim that could not be brought individually. In re Sunrise Securities Litigation, 108 B.R. 471, 476 (E.D.Pa.1989). We hold that this entire claim is derivative and cannot be brought as an individual RICO action. Therefore, we will affirm the district court’s grant of summary judgment. I. On October 11, 1984, plaintiffs Anne and George Popkin purchased five $100,000 six-month certificates of deposit from Old Sunrise. Popkin claims that they purchased the certificates after learning of Old Sunrise’s favorable interest rate in a Florida newspaper advertisement and after confirming that the certificates were insured by the Federal Savings and Loan Insurance Corporation (“FSLIC”). To ensure that their entire deposit would be protected under the $100,000 FSLIC insurance limit, the Popkins placed the five certificates in separate accounts under the names of George Popkin, Anne Popkin, George Popkin in trust for Anne Popkin, Anne Popkin in trust for George Popkin, and George or Anne Popkin. Popkin asserts that at the time of purchase, he requested a financial statement for Old Sunrise and that he received a statement for the period ending June 1988. On April 11, 1985, the certificates matured. The Popkins withdrew the interest and rolled over the principal into five one-year $100,000 certificates. On July 18,1985, the Federal Home Loan Bank Board (“Bank Board”) declared Old Sunrise insolvent, appointed FSLIC as receiver, and organized New Sunrise, the federal mutual association to which Old Sunrise’s assets and liabilities were transferred. Defendants were not involved in the establishment or operation of New Sunrise. A new board of directors, auditor, and general counsel were appointed, and Ameri-First Federal Savings and Loan Association was hired as management advisor. Plaintiffs have acknowledged that none of the Old Sunrise depositors lost any portion of their Old Sunrise deposits, including those whose deposits exceeded the insurance limit of $100,000 prescribed under 12 C.F.R. §" }, { "docid": "8348131", "title": "", "text": "Michelsen, 10 F.Supp., at 539-540 (holding that “allegations of false representations made by the defendant as to the bank's solvency, known by him to be false and relied on by the plaintiffs and depositors generally” stated a nonderivative cause of action). . In their Memorandum opposing Blank Rome’s motion, the Popkins claim that misrepresentations that Old Sunrise was a \"legitimate, well run and secure savings and loan association” occurred in Old Sunrise advertisements aimed specifically at depositors. Memorandum in Opposition to Motion of Blank Rome for Summary Judgment, at 3. But I will not address the question whether representations or omissions in advertisements directed toward prospective depositors directly injure persons who make deposits in reliance upon them, since I find that the Popkins cannot establish that they suffered any injury due to representations concerning Old Sunrise’s financial condition. See infra. Counsel for the Popkins has filed an affidavit pursuant to Rule 56(f) seeking discovery relating to Old Sunrise’s advertisements. Plaintiffs' Memorandum in Opposition to Motion of Blank Rome for Summary Judgment, Exhibit C. Since I find that the Popkins suffered their losses on their New Sunrise deposits, not on their Old Sunrise deposits, this affidavit sets forth no basis for denying summary judgment or continuing discovery under 56(f). . I express no opinion as to whether applicable statutes of limitations, laches or other doctrines bar the Popkins or other Old or New Sunrise depositors from making the required demand for suit on FSLIC or from filing a derivative suit at this time. . Since jurisdiction over the Popkins’ state law claims is pendent to the RICO claim, I will dismiss them as well. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). I therefore do not reach the questions whether the Popkins' state law claims are derivative, and whether the Popkins have standing to pursue them. . Although only some defendants have moved for summary judgment, see supra n. 2, I find that the grounds which make summary judgment appropriate on the Popkins' claims against the moving defendants are equally applicable to" }, { "docid": "8348118", "title": "", "text": "creditors would make “the equality promised to them by the [National Bank Act] a mere mockery.” 879 F.2d, at 763-764 (citations omitted). I need not determine whether the Popkins’ allegations that defendants misrepresented Old Sunrise’s financial condition state a recognizable claim of individual injury, however, because undisputed facts establish that the Popkins have suffered no losses as a result of any such misrepresentations or omissions, and therefore that summary judgment is appropriate for any RICO claim the Popkins might assert based solely on these allegations. It is undisputed that neither the Popkins nor any other depositors lost any money when Old Sunrise was declared insolvent. See supra, n. 4. After New Sunrise was declared insolvent in September, 1986, the Popkins suffered their loss on certificates of deposit they had purchased from New Sunrise on April 11, 1986. The Popkins do not dispute that the defendants in this action had no connection to New Sunrise, and they do not allege that the defendants ever made any representations regarding the financial condition of New Sunrise. See Memorandum of FSLIC in Support of Certain Defendants’ Motions for Summary Judgment, at 13-14 (noting that New Sunrise had different management, directors, outside legal counsel and independent auditors than Old Sunrise). The Popkins argue that their purchase of New Sunrise certificates on April 11, 1986 was only a “rollover” of the certificates they had purchased from Old Sunrise, not a new investment in New Sunrise. But it is undisputed that when the Popkins’ former Old Sunrise certificates matured on April 11,1986, the Popkins could have withdrawn without penalty the full amount of their deposit plus interest and invested the funds elsewhere. Indeed, George Popkin testified in his deposition that on April 11,1986, he and his wife withdrew from New Sunrise the interest accrued on the certificates and deposited it in one or more other banks. Popkin Deposition, at 34-35. Under these circumstances, the deposit on which the Popkins suffered their losses must be considered to have occurred on April 11,1986, when the Popkins purchased their New Sunrise certificates. As a result, the Popkins suffered no losses" }, { "docid": "5222803", "title": "", "text": "uninsured deposits. At the time of the district court decision, the Popkins had outstanding claims for interest of $1,878.92 on each certificate, totaling $9,394.60. Id. at 475. The Popkins filed this action in February 1988 on behalf of all depositors with interest-bearing accounts at Old Sunrise on July 15, 1985 seeking recovery of their uninsured deposits. In their complaint, they allege that defendants violated RICO, 18 U.S.C. § 1962(a), (c), and (d), by conducting the affairs of Old Sunrise through a pattern of racketeering activity consisting of numerous acts of mail, wire, and securities fraud, and the interstate transportation and receipt of fraudulently-obtained funds. According to plaintiffs, defendants attracted depositors “by holding Sunrise out to federal and state regulators and the public ... as a legitimate, well-run and secure savings and loan association” and by promising attractive interest rates in “advertisements, press releases, periodic reports and other publicly disseminated materials.” Complaint ¶¶ 15, 20. In particular, plaintiffs contend that defendants failed to disclose that Old Sunrise was neither financially secure nor well-managed and that defendants had engaged in self-dealing. Id. ¶¶ 22-25. Plaintiffs allege that Old Sunrise’s insolvency and plaintiffs’ losses resulted from defendants’ RICO violations. Id. Till 43, 44. Certain defendants moved for summary judgment and the district court granted the motion and dismissed the complaint as to all defendants. The district court stated that plaintiffs could not recover on the theory that defendants’ mismanagement caused the insolvency of either Old or New Sunrise because such a claim was derivative and belonged to FSLIC as receiver for both institutions. In re Sunrise Securities Litigation, 108 B.R. at 477-78. Moreover, the court held that plaintiffs’ claims based on the failure to disclose that mismanagement and self-dealing injured Old Sunrise also were derivative. Id. at 479. The court reasoned that, in essence, plaintiffs claimed that defendants failed to inform depositors that defendants had injured Old Sunrise. Thus, the depositors’ injury was an indirect result of defendants’ wrongdoing to Old Sunrise. In addition, the court concluded that allegations involving misrepresentations made in statements to the general public asserted a wrong that is" }, { "docid": "8348121", "title": "", "text": "New Sunrise), Exhibit F (Assignment and Agreement Between FSLIC Corporate and New Sunrise); 12 C.F.R. §§ 569a.7, 569c.ll (1989) (setting forth priority of claims against receiver). FSLIC states that it anticipates that as liquidation of New Sunrise assets continues, depositors will receive distributions in addition to the 43.45% of their uninsured deposits they already have received in accordance with the receivership plan. Memorandum of FSLIC in Support of Certain Defendants’ Motions for Summary Judgment, at 13. It is true that FSLIC has not guaranteed that the Popkins and other depositors will recover all or substantially all of their losses through the receivership scheme. Plaintiffs’ Reply to the Memorandum of FSLIC Regarding Summary Judgment, at 10-11. Nevertheless, FSLIC has guaranteed that the remaining assets of New Sunrise will be distributed in an equitable manner among the depositors and other creditors of New Sunrise, and that depositors will recover the same percentage of their losses as other unsecured creditors in their class under the regulatory receivership scheme. The Popkins cannot establish that they have suffered an individual injury distinct from that suffered by New Sunrise’s other creditors, and therefore are not entitled to the priority over other creditors’ claims which they would receive if they successfully pursued the claims they have asserted in this action. Defendants’ motions for summary judgment will be granted, and the Popkins’ complaint will be dismissed. . Three groups of claims have been consolidated for pretrial proceedings in this multidistrict litigation: state common law and Securities Exchange Act of 1934 claims asserted by Old Sunrise shareholders (the \"Securities case”); fiduciary duty claims asserted by the Federal Savings and Loan Insurance Corporation (\"FSLIC”) in its corporate capacity (the \"Fiduciary Duty case”); and state common law and civil RICO claims asserted by former Old Sunrise depositors (the \"Depositors case”). The present motions concern the Depositors case only. . The following defendants have moved for summary judgment in the Depositors case: Alan B. Keiser, Nathaniel B. Jacobs, Robert Logsdon, Robert T. Siemon, George Greenberg, Lake Ly-tal and Bernard Simonson (the \"Outside Directors” of Old Sunrise); Deloitte Haskins & Sells; Robert C." }, { "docid": "5222798", "title": "", "text": "OPINION OF THE COURT SCIRICA, Circuit Judge. In this appeal, we consider the legal limitations on the rights of depositors to assert individual RICO claims against the directors, officers, auditors, and outside counsel of an insolvent savings and loan association, rather than to recover their losses through the receiver’s actions on their behalf, or by way of a derivative suit. The plaintiffs in this class action, former depositors of Sunrise Savings & Loan Asso ciation of Florida (“Old Sunrise”), a Florida corporation, and Sunrise Savings & Loan Association (“New Sunrise”), a federal mutual association, appeal the dismissal of their complaint against the former directors, officers, attorneys, and auditors of Old Sunrise. The complaint alleges violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (1988), as well as pendent state law claims arising from the insolvency and federal takeover of Old and New Sunrise. The district court granted summary judgment for defendants after finding that plaintiffs could not establish that defendants’ misrepresentations regarding the financial condition of Old Sunrise caused plaintiffs’ losses. Moreover, the district court found that to the extent plaintiffs had alleged that defendants’ wrongdoing caused the demise of New Sunrise or that defendants misrepresented and failed to reveal that they had injured Old or New Sunrise, plaintiffs had asserted a derivative claim that could not be brought individually. In re Sunrise Securities Litigation, 108 B.R. 471, 476 (E.D.Pa.1989). We hold that this entire claim is derivative and cannot be brought as an individual RICO action. Therefore, we will affirm the district court’s grant of summary judgment. I. On October 11, 1984, plaintiffs Anne and George Popkin purchased five $100,000 six-month certificates of deposit from Old Sunrise. Popkin claims that they purchased the certificates after learning of Old Sunrise’s favorable interest rate in a Florida newspaper advertisement and after confirming that the certificates were insured by the Federal Savings and Loan Insurance Corporation (“FSLIC”). To ensure that their entire deposit would be protected under the $100,000 FSLIC insurance limit, the Popkins placed the five certificates in separate accounts under the names of George Popkin," }, { "docid": "5222802", "title": "", "text": "Bank Board’s action is a stable, solvent Sunrise Savings.” Popkin claims that he neither saw the newspaper articles nor received the July 30 letter. He contends that he remained unaware of Old Sunrise’s insolvency until July 1986. In the meantime, on April 11, 1986, the Popkins’ Old Sunrise certificates matured. The Popkins withdrew their interest and rolled over the principal into five $100,000 one-year certificates with New Sunrise. They elected to receive their interest quarterly rather than at maturity. Nonetheless, they did not withdraw the interest when it was posted the following quarter. On September 12, 1986, the Bank Board declared New Sunrise insolvent and temporarily froze all accounts. In October 1986, FSLIC transferred the insured deposits to Beach Federal Savings and Loan Association and issued certificates of claim for the uninsured interest that had accrued between April 1986 and September 1986 on each of the Popkins’ five certificates. Since July 1988, FSLIC has made three partial distributions of proceeds to New Sunrise depositors, including the Popkins, amounting to a total of 43.45% of their uninsured deposits. At the time of the district court decision, the Popkins had outstanding claims for interest of $1,878.92 on each certificate, totaling $9,394.60. Id. at 475. The Popkins filed this action in February 1988 on behalf of all depositors with interest-bearing accounts at Old Sunrise on July 15, 1985 seeking recovery of their uninsured deposits. In their complaint, they allege that defendants violated RICO, 18 U.S.C. § 1962(a), (c), and (d), by conducting the affairs of Old Sunrise through a pattern of racketeering activity consisting of numerous acts of mail, wire, and securities fraud, and the interstate transportation and receipt of fraudulently-obtained funds. According to plaintiffs, defendants attracted depositors “by holding Sunrise out to federal and state regulators and the public ... as a legitimate, well-run and secure savings and loan association” and by promising attractive interest rates in “advertisements, press releases, periodic reports and other publicly disseminated materials.” Complaint ¶¶ 15, 20. In particular, plaintiffs contend that defendants failed to disclose that Old Sunrise was neither financially secure nor well-managed and that defendants" } ]

[ { "docid": "947624", "title": "", "text": "$100 to people trying to live on retirement incomes is not only not de minimis, but may indeed be a grievous loss. . In their complaint, the plaintiffs also alleged that the statute and administrative practice violated the equal protection clause because similarly situated beneficiaries — raising identical factual and legal issues — were treated differently solely on the basis of the size of their dispute. The district court held that the “rational basis” test applied, see Williamson v. Lee Optical of Okl., Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), and that the distinctions, drawn to reduce the financial burdens on the Medicare program and the courts, clearly had a rational basis. The plaintiffs have not sought review of that portion of the district court’s ruling. . Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), held that Social Security disability benefits could be terminated without first holding an oral hearing when a formal evidentiary hearing would be available at a later stage in the process and any wrongfully withheld sums would be paid retroactively. . See Appellee’s Petition for Rehearing and Suggestion for Rehearing En Banc at 2 (“No opportunity to present evidence or argument orally is available.”). . For this very reason, the court in Eldridge refused to place much weight on statistical reversal rates, noting that “[b]are statistics rarely provide a satisfactory measure of the fairness of a decisionmaking process.” 424 U.S. at 346, 96 S.Ct. at 908. . In 1972, when the amendments were passed eliminating formal hearing rights for under-$100 Part B disputes, approximately 45 percent of the hearings held involved less than $100. S.Rep.No. 1230, 92d Cong., 2d Sess. 213 (1972). In spite of inflationary pressures, it is undisput ed by the plaintiffs that a substantial number of hearings would be requested by those with small claims at stake. Of course, there is no way of predicting how many of these hearings could be eliminated by providing better notice at the outset of the dispute. . Gray Panthers v. Califano, 466 F.Supp. 1317, at 1325 (D.D.C.1979)" } ]

[ { "docid": "14427825", "title": "", "text": "insufficient to satisfy the requirements of due process. A § 1983 action alleging a procedural due process clause violation requires proof of three elements: a deprivation of a constitutionally-protected liberty or property interest; state action; and constitutionally inadequate process. Although the appellees contend that Long failed to prove any of the three elements, we assume, for the purposes of this appeal, the existence of both a protected property interest in workers’ compensation benefits and state action. While we recognize the serious state action questions raised by Long’s suit, we, like the district court, need not address or decide the issue because we find that the Georgia workers’ compensation system provides all of the process constitutionally due a claimant. Due process entitles an individual to notice and some form of hearing before state action may finally deprive him or her of a property interest. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 901-902, 47 L.Ed.2d 18 (1976). Long does not challenge the sufficiency of notice nor does he allege that the unilateral termination of his benefits was itself a “final deprivation” for as we discuss below, Georgia law provides for a post-termination hearing and retroactive remedies. Rather, he contends that due process requires a hearing before any deprivation of his property interest occurs. We cannot agree. Due process is a flexible concept that varies with the particular situation. The question before us is whether the Georgia system satisfies the fundamental requirement of due process by providing a claimant an opportunity to be heard “ ‘at a meaningful time and in a meaningful place.’ ” Mathews, 424 U.S. at 333, 96 S.Ct. at 902 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). We believe it does. Georgia law does not allow an employer or insurer to summarily terminate an employee’s disability benefits for any reason it sees fit. Section 34-9-221(i) of the Georgia Workers’ Compensation Act provides: Where compensation is being paid with or without an award and an employer or insurer elects to controvert on the grounds of a change in" }, { "docid": "23378815", "title": "", "text": "if there is a distinction to be drawn between the two situations, it points to exactly the opposite conclusion. As the Supreme Court has repeatedly observed, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). The due process clause requires the opportunity for a hearing when government wishes to deprive us of our rights; it does not require the opportunity for an appeal. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); Ortwein, 410 U.S. at 660, 93 S.Ct. at 1174. I do not understand how the regulations can impermissibly burden appeals when the identical burden on the right to any hearing at all is perfectly acceptable. See Wiren v. Eide, 542 F.2d 757, 763-64 (9th Cir.1976) (bond requirement that prevents indigents from obtaining any hearing at all violates due process, unlike filing fee requirements that prevent judicial appellate review of administrative hearings). The majority stands due process on its head. 3. The majority also appears to hold that the right to take an appeal in an immigration case is a fundamental right, like marriage or procreation, and therefore conditioning voluntary departure on its waiver is unconstitutional. Majority Op. at 1095; see also id. at 1094-1095 (citing Israel v. INS, 785 F.2d 738 (9th Cir.1986)). In Israel we noted that conditioning a grant of voluntary departure on an alien’s promise not to marry a United States citizen amounted to “unjustified government interference in a personal decision relating to marriage,” because the right to marry is a fundamental constitutional right. Id. at 742 n. 8 (citing Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 680, 54 L.Ed.2d 618 (1978)). The majority apparently believes that the right of appeal is entitled to the same solicitude. It is difficult to overstate the significance of this aspect of the majority’s opinion. Heretofore," }, { "docid": "16648575", "title": "", "text": "Id. at 289 (“[sjince * * * inmates for whom no parole date had been set could have some protectable interest, we are hard pressed to believe that th[e] Court would not also find that a protectable interest is possessed by an inmate whose release date has already been set and is less than six months away”). Calhoun, therefore, had a liberty interest in his release from confinement on June 9, 1985, the deprivation of which should not have occurred without due process. Due process requires, as a general matter, an “opportunity to be heard ‘at a meaningful time and in a meaningful manner’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). In the ordinary parole-revocation case, New York does provide an adequate opportunity to be heard. First, providing the preliminary hearing assures that a declaration of delinquency, and thus an interruption of sentence, will not occur without at least a finding of probable cause. Second, providing the final revocation hearing within 90 days, with all of its procedural prerequisites under state law, see N.Y. Executive Law § 259 — i(3)(f), guarantees that the original declaration of delinquency made by the board is reliable, or if not, will be promptly corrected. Third, erroneous determinations may be reviewed promptly in a proceeding under NYCPLR Article 78, if brought in advance of the adjusted maximum expiration date, or in a state habeas corpus proceeding. People ex rel. Brown v. New York State Division of Parole, 70 N.Y.2d 391, 398, 521 N.Y.S.2d 657, 516 N.E.2d 194 (1987). Therefore, New York’s procedures relating to the adjustment of an inmate’s maximum expiration date, in most circumstances, would provide the due-process protection required by Mathews.. Calhoun, however, was accorded only the first of these procedures, when he was offered a preliminary hearing (which he waived). He was never found guilty of the charged parole violation, and the charge, itself, was summarily dismissed without a hearing for reasons of administrative convenience.. Moreover, the" }, { "docid": "22204867", "title": "", "text": "Powell construed 20 C.F.R. §§ 404.967 and 404.969 which provide: § 404.967 Appeals Council review-general. If you or any other party is dissatisfied with the hearing decision or with the dismissal of a hearing request, you may request that the Appeals Council review that action. The Appeals Council may deny or dismiss the request for review, or it may grant the request and either issue a decision or remand the case to an administrative law judge. The Appeals Council shall notify the parties at their last known address of the action it takes. § 404.969 Appeals Council initiates review. Anytime within 60 days after the date of a hearing decision or dismissal, the Appeals Council itself may decide to review the action that was taken. If the Appeals Council does review the hearing decision or dismissal, notice of the action will be mailed to all parties at their last known address. . The notice afforded to appellant that all issues in his case would be reviewed de novo was of dubious adequacy. Only at the inception of the second hearing was appellant informed of this fact. Even after this the AU himself sought clarification of the appropriate scope of his review. \"[T]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.' ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). \"The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending ‘hearing.’ ” Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 14, 98 S.Ct. 1554, 1563, 56 L.Ed.2d 30 (1978) (emphasis/added). . The Appeals Council’s denial of appellant’s request for review of the initial AU decision constituted the final decision of the Secretary. See Rankin v. Heckler, 761 F.2d 936 (3d Cir. 1985). . The claimant’s introduction of evidence that his condition continues gives rise to a presumption of continuing disability." }, { "docid": "19942361", "title": "", "text": "is a rose.” Stein, Sacred Emily, in GeogRaphy Aud Plays 178 (1922). In this case we would advise the government that an injunction is an injunction is an injunction. That which we call an injunction by any other name is reviewable on interlocutory appeal. We therefore join our fellow circuits and hold that the seizure warrant and restraining order are properly within our jurisdiction to hear interlocutory appeals under § 1292(a)(1). B. Due Process Having determined that the seizure warrant and restraining order are properly before us for review, we must then determine the merits of appellants’ claim that seizure of their assets upon the issuance of the indictment without an opportunity for adversary hearing constitutes a violation of their due process rights under the Fifth Amendment, at least in a case in which they have demonstrated the inability to retain counsel of their choice without access to the seized assets. We hold that the due process clause does require such an opportunity to be heard. As in the case of the jurisdictional question, this circuit has not yet considered the question before us. Other circuits have, as we will discuss more fully below. To begin with, we repair to first principles. In ascertaining the requirements of the due process clause in affording a hearing to those whose assets are the subject of seizure, we look first to the Supreme Court’s declarations in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). That ease commands that “the fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Id. at 333, 96 S.Ct. 893 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). So far as the meaning of “meaningful time” is concerned, “[a] fundamental norm of the due process clause jurisprudence requires that before the government can constitutionally deprive a person of the protected liberty or property interest, it must afford him notice and hearing.” National Council of Resistance v. Dep’t of State, 251 F.3d 192, 205 (D.C.Cir.2001) (citing" }, { "docid": "19942362", "title": "", "text": "circuit has not yet considered the question before us. Other circuits have, as we will discuss more fully below. To begin with, we repair to first principles. In ascertaining the requirements of the due process clause in affording a hearing to those whose assets are the subject of seizure, we look first to the Supreme Court’s declarations in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). That ease commands that “the fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Id. at 333, 96 S.Ct. 893 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). So far as the meaning of “meaningful time” is concerned, “[a] fundamental norm of the due process clause jurisprudence requires that before the government can constitutionally deprive a person of the protected liberty or property interest, it must afford him notice and hearing.” National Council of Resistance v. Dep’t of State, 251 F.3d 192, 205 (D.C.Cir.2001) (citing Mathews v. Eldridge, 424 U.S. at 334-35, 96 S.Ct. 893). We recognize that in many circumstances—-indeed, the circumstances of this case—it may be impossible to afford a full adversarial hearing before the initial seizure of the property in question. It may well be that in the case of a criminal proceeding in which the government may ultimately have rights in the property at issue, immediate protective measures must be taken in order to prevent dissipation or deterioration of the assets before the time for trial is reached. This does not, however, compel a conclusion that an adversarial hearing after the initial seizure may be finessed without violating the due process rights of the persons whose assets have been seized. To make that determination requires further inquiry. In Mathews v. Eldridge, the Supreme Court set forth three elements of inquiry which the courts must apply in determining the due process rights of citizens who were subjected to the seizure of their property or other constitutionally protected interests: First, the private interest that will be affected by" }, { "docid": "7165239", "title": "", "text": "v. Union Railroad Co., 648 F.2d 905, 909 (3d Cir.1981). Nevertheless, Union Railroad and Horizons International, Inc. v. Baldridge, 811 F.2d 154 (3d Cir.1987), recognize that when a district court finally resolves an important legal issue in reviewing an administrative agency action and denial of appellate review before remand to the agency would foreclose appellate review as a practical matter, the remand order is immediately appealable. The present appeal challenges a remand order based on the district court’s analysis of due process requirements in a dredge- and-fill permit proceeding. The district court has resolved an issue of wide-reaching impact, even though the lower court carefully confined its decision to the facts of this case. The decision opens up for all applicants the argument, raised after permit denial, that due process requires a hearing in their particular cases. This important decision cannot receive later appellate review. If on remand the Corps grants AJA a permit, the case will never return to the courts. If the Corps again denies the permit after a hearing, judicial review sought by AJA will not allow consideration of the right-to-hearing issue, because the issue will have become moot. We conclude that the appeal presents a final order within the meaning of 28 U.S.C. § 1291 as it has been interpreted in this circuit. III. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965).” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (emphasis added). In this case, AJA took advantage of its opportunity to advance arguments in support of its permit application through written submissions to the Corps. The issue now, after the permit has been denied, is whether due process requires remand for an informal oral hearing even though AJA did not take advantage of its opportunity during the comment period to request an oral hearing. Due process does not so require; a permit applicant cannot lay blame on an agency for" }, { "docid": "7560567", "title": "", "text": "v. Lopez (1975) 419 U.S. 565, 578, 95 S.Ct. 729, 42 L.Ed.2d 725.) Its contours are specified by a balance among various factors: “first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 [44 U.S.L.W. 4224, 4229 (1976)].) (See generally Note, “Specifying the Procedures Required by Due Process: Towards Limits on Interest Balancing,” 88 Harv.L. Rev. 1510 (1975).) Moreover, the component parts of the process are not unrelated (Friendly, “Some Kind of Hearing,” 123 U.Pa.L.Rev. 1267 (1975)): the goal of the procedures is to reach a substantively cor rect result at a minimum of cost. More elaborate procedures at one stage may compensate for deficiencies at other stages. (Cf. Mathews v. Eldridge, supra; Arnett v. Kennedy (1974) 416 U.S. 134, 187, 195-96, 94 S.Ct. 1633, 40 L.Ed.2d 15.) A de facto tenured faculty member has a right to notice, and “a hearing, at [her] request, where [she] could be informed of the grounds for [her] nonretention and challenge their sufficiency.” (Perry v. Sindermann (1972) 408 U.S. 593, 603,92 S.Ct. 2694, 2700, 33 L.Ed.2d 570.) Far from requiring that this hearing precede the decision not to rehire the employee, the cases only mandate that the hearing be granted “at a meaningful time and in a meaningful manner.” (Armstrong v. Manzo (1965) 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62.) This usually means before the discharge becomes effective, but it can mean after the termination, if there is an adequate procedure for redress. (See Mathews v. Eldridge, supra; Arnett v. Kennedy, supra.) The Bignalls assert Perry v. Sindermann and its progeny mean that Mrs. Bignall had a right to notice and a hearing before Schuler had decided that she was one of the" }, { "docid": "13125086", "title": "", "text": "Appellants would have this Court interpret these cases to establish a rule that parties whose economic interest may be affected by an adoption are entitled to either notice of the proceeding or an alternative mechanism to assert their right to notice. Yet, these cases are distinguished from the scenario before us because in both Armstrong and Lehr, the adoption proceeding itself extinguished the natural fathers’ liberty interest in their parental status. In this case, the New Jersey adoption proceeding did not purport to or actually determine the Appellants’ interest in the Trust. Rather, the adoption proceeding simply created a parental relationship between Maria and her second cousin adoptees. What, if any, effect the adoption had on the interests in the Trust of the other beneficiaries was a matter for the trustees and the Maryland courts. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). The Appellants’ claim of a property interest in Maria’s one-tenth share of the Trust will be determined by the trustees, based on their interpretation of the requirements specified in the Trust itself, or by a court deciding the issue under Maryland law. The New Jersey court, by granting the adoptions, exercised no jurisdiction or authority over any property interest in the Trust. Therefore, the “meaningful time” for the Appellants to be heard will occur when either the District Court on remand elects to address the state law claim under diversity jurisdiction, or abstains, leaving the issue to the Maryland state court. The Supreme Court’s recent opinion in Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 121 S.Ct. 1446, 149 L.Ed.2d 391 (2001) further supports our conclusion that the Appellants did not have a due process right to notice in this case. In Lujan, a California agency, acting under state law, withheld payments to a construction contractor because the agency alleged that" }, { "docid": "23323198", "title": "", "text": "by the City defendants on the remaining claims against them. The Millers now contend that the District Court erred by dismissing their procedural due process claim, by granting qualified immunity to Scheer, and by making impermissible credibility determinations. II. Procedural Due Process The first issue is narrow. Although Appellants argue that their procedural due process rights were violated, they do not challenge the constitutionality of the Pennsylvania statute that sets forth the procedure to be followed in emergency child custody hearings, nor do they contend that DHS personnel failed to follow the statutory procedures for taking a child into custody. Instead, Appellants contend that the procedures adopted by DHS to implement the state statute are faulty because they did not ensure that either Miller or Deratzian, who were both present at the hospital and therefore clearly available, had the opportunity to participate in the emergency hearing before the judge. Our review of the District Court’s decision to dismiss is plenary. In our view, this argument fails to raise a valid procedural due process claim. Appellants contend that when a parent, or the parent’s attorney, is available when the government applies for a restraining order, the government must allow the parent or the attorney to take part in the hearing. Such a requirement, they argue, would protect the parent’s interest in the custody of their child without any significant burden on the government. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). Assessing whether due process has been given involves a weighing of the factors set forth by the Supreme Court in Mathews: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including" }, { "docid": "17839925", "title": "", "text": "at 2. Because the claim depends largely on questions of law, which can be resolved through briefing and argument, the parties agreed to cross-move for summary judgment on the due-process claim. Id. The parties submitted their motions — plus some supplemental briefing — and the Court held a consolidated oral argument. With the briefs in and the argument over, the due-process question is now before the Court. II. A. The parties agree on some basics. Due process has always required an “opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914). Since the 1970s, due process has specifically required that, when terminating someone’s social-security benefits, the SSA give that person some kind of hearing. See Mathews v. Eldridge, 424 U.S. 319, 343, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (citing Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1281 (1975)). The SSA gave Hicks a hearing. And, it argues, that was enough. There the parties diverge. The wisdom of the halftime speech — not to mention the Due Process Clause — applies to the government, too. It’s not always what the government does that matters, but how. Whatever kind of hearing an agency might provide, that hearing must be “meaningful.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Of course, what is meaningful to one person might seem meaningless to another. Thus, “how much process is due” is, largely, relative. Shoemaker v. City of Howell, 795 F.3d 553, 559 (6th Cir. 2015). But there is at least one absolute. Even if no two hearings are alike, all meaningful hearings provide “a fair opportunity to rebut the [government's factual assertions before a neutral decisionmaker.” Hamdi, 542 U.S. at 533, 124 S.Ct. 2633. Granted, not all assertions are fair game. The sky is blue. There are x number of certain jobs available nationwide. Those types of “general factual issues” are “not unique to each claimant.” Heckler v. Campbell, 461 U.S. 458, 468, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). Such assertions are not" }, { "docid": "22978124", "title": "", "text": "ex parte, pretrial restraints on their assets.” Id. at 1348. Even in their brief on appeal, the defendants failed to argue that they were entitled to a pretrial, post-restraint hearing. On its own initiative, however, the court posed the question the defendants had never asked: whether, after issuing the warrants, the district court should have held a pretrial hearing to determine whether the application for the warrants authorizing the seizures was supported by probable cause. The court then answered its own question by stating that under the Sixth Amendment speedy-trial standard of Barker v. Wingo, a pretrial evidentiary hearing was not required. The court’s answer constituted pure dicta, as the ques tion was never raised by any party, was unnecessarily injected into the case by the court itself, and was therefore unnecessary to the resolution of the Bissell defendants’ appeals. II. If we acknowledge that Bissell’s discussion of the issue at hand is dicta, we are left with no binding precedent on the question of whether a criminal defendant standing in the Kaleys’ shoes is entitled as a matter of due process to a post-restraint hearing prior to trial. In the absence of binding precedent, the panel should have looked to the general requirements of procedural due process. See United States v. E-Gold Ltd., 521 F.3d 411, 415 (D.C.Cir. 2008) (using this approach to determine whether a post-restraint, pretrial hearing was due). The court’s approach today, following the dicta in Bissell, contravenes these principles. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner’ ” upon the deprivation of. liberty or property. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). This basic statement of due process requires different measures in different contexts. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) (“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.”); Mullane v. Cent. Hanover" }, { "docid": "7552080", "title": "", "text": "be confined to an examination of the statement of reasons given for taking disciplinary action. See Dunlop v. Bachowski, 421 U.S. 560, 572-74, 95 S.Ct. 1851, 1860-61, 44 L.Ed.2d 377 (1975); Rabin, Job Security and Due Process: Monitoring Administrative Discretion Through a Reasons Requirement, 44 U.Chi.L.Rev. 60, 80-93 (1976); but see Chase v. Fall Mountain Regional School District, 330 F.Supp. 388, 399-400 (D.N.H.1971) (\"To hold that a superintendent and a School Board need make no inquiry as to the truth or falsehood of the facts underlying the reason proffered for dismissal [of a teacher] would offend the most elemental concepts of justice.”). Nevertheless, we conclude that the plaintiff was entitled to a meaningful opportunity to respond to the charges against him. As the Supreme Court has stated, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). The Court has stressed that the purpose of providing “some opportunity for the employee to present his side of the case” is to aid the employer in reaching “an accurate decision.” Loudermill, 105 S.Ct. at 1494-96 (emphasis added). Section 510.01 of the Personnel Policies and Procedures Manual was the provision that was relied on by the Personnel Board in upholding the demotion decision. That ordinance specifically provides that insubordination, as a just cause for disciplinary action, is the “[r]efusal to comply with the proper order of an authorized supervisor.” (Emphasis added). Plaintiff was never given the opportunity either in a suspension hearing or in the demotion hearing of October 23-24, 1980, to demonstrate that the September 29, 1980, order of suspension was improper; thus, plaintiff was unable to present one of his two essential defenses at the demotion hearing to rebut the reason of insubordination which was given for his demotion. See IV R. 104. We hold that the record does not establish the absence of any genuine issue as" }, { "docid": "10768460", "title": "", "text": "a sample is a minimal one. Under the circumstances presented in this case, the court is persuaded that the breathalyzer and urine regulations, as administered by the Commission, do not violate plaintiffs’ right to freedom from unreasonable searches and seizures. B. Due Process Claim . Plaintiffs allege that the regulations violate the Due Process Clause of the Fourteenth Amendment because they do not expressly provide a hearing at which they can challenge the results of the tests or any penalties imposed. The court disagrees. First, a license to race is a property interest. See Niglio, supra, 158 N.J.Super. at 189-90, 385 A.2d 925. The United States Supreme Court has consistently held that some form of hearing is required before an individual is finally deprived of his property interest. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1975); Wolff v. McDonell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews, supra, 424 U.S. at 333, 96 S.Ct. at 902; Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965); see Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). Due process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600,. 33 L.Ed.2d 484 (1972). The court finds that plaintiffs are entitled to a hearing to challenge the results of any test administered under the breathalyzer and urine test rules or any penalty imposed therein. N.J.A.C. 13:70-13A.l provides for such a hearing “[w]hen any person is disciplined by the stewards or any official representing the Commission pursuant to the laws of New Jersey or rules of the Commission.” The court finds that the procedures as provided are attenuated by all of the constitutional and statutory safeguards inherent in the requirement" }, { "docid": "23658051", "title": "", "text": "authority’s decision to impose a sentence of death under the Illinois statute clearly requires notice to the accused. As was noted in a different context by the Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), a “fundamental requirement of due process in any proceeding which is to be accorded finality is 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.” (citations omitted); see also Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner). The question presented by Petitioner’s fourteenth amendment claim is whether procedural due process mandates that the accused be given pretrial notice of a State’s intent to seek the death penalty in a particular case. We do not believe that it does. The Supreme Court has recognized that, “ ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’” Mathews, 424 U.S. at 334, 96 S.Ct. at 902 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). In determining what due process a particular situation may demand, the Court has indicated that three factors must be considered: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional safeguards; and, (3) the government’s interest. Id. 424 U.S. at 335, 96 S.Ct. at 903. Obviously, the private interest at stake under Petitioner’s claim, and that of any other death-eligible defendant, is of the greatest magnitude. In light of the notice and procedural safeguards which are provided under the Illinois statute, however, we do not believe that any risk of erroneous deprivation which might exist mandates the adoption of Petitioner’s proposed additional procedural safeguard. Nor do we believe" }, { "docid": "4927330", "title": "", "text": "is at stake, and if so, then assessing the appropriate measure of procedural protection due. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Here, 31 commercial fishing vessels, surely a form of constitutionally protectible property, were seized by government officials and, absent a bond, put totally beyond use during the pendency of administrative and judicial proceedings concerning fines that the government* intends to impose for alleged violations of 8 U.S.C. §§ 1321, 1323 and 1324. The question before the Court, therefore, is whether due process strictures were satisfied. The right to due process is absolute; but what constitutes due process varies in different factual situations. Mathews v. Eldridge, 424 U.S. at 333-34, 96 S.Ct. at 901-903. There are basic elementary safeguards of procedural due process, which, although having varying forms in different contexts, must be present. The absence of some form of those basic protections is a fatal deficiency. North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 607, 95 S.Ct. 719, 722, 42 L.Ed.2d 751 (1975). The fundamental, indispensable protections of procedural due process are notice and a right to be heard by an impartial decision-maker, and both “must be granted at a meaningful time and in a meaningful manner.” Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972), quoting from Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). Notice and a hearing are ordinarily required prior to government deprivations. Exceptions to this general rule have been made where a prior hearing would have been inconsistent with “a countervailing interest of overriding significance,” Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971), either because of the delays created by the hearing process, or because of the opportunity for evasion presented to the target of government action by the very fact of prior notice. Thus, the Supreme Court has not required a hearing prior to emergency action in wartime nor has the Court compelled prior hearings where summary action has been necessary to protect consumers" }, { "docid": "16757852", "title": "", "text": "127 F.3d 622, 624-25 (7th Cir.1997) (citations omitted). Wilson has not argued, nor do we find that he could, that the text of § 922(g)(8) requires a different meaning to be ascribed to “knowing,” and he has not argued that he did not have knowledge of the actions constituting the offense (i.e., that he was possessing a gun in his car and was subject to an order of protection). Wilson’s lack of knowledge of the existence of the statute is therefore immaterial and his due process rights were not violated in this case. In summary, we find that § 922(g)(8) is a valid exercise of Congress’ power under the Commerce Clause and does not violate either the Tenth Amendment or the due process clause of the Fifth Amendment. However, Wilson also challenges several other rulings of the district court, to which we now turn. II. Denial of Defendant’s Motions for Judgment of Acquittal After the government had presented its evidence, and again after Wilson had presented his, defense counsel moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(a). The district court denied both of these motions. On appeal, Wilson asserts that the district court’s decisions were erroneous because the hearing he was given on September 1,1995, did not meet the requirements of the Due Process Clause. The Supreme Court has consistently held that “some form of hearing is required before an individual is finally deprived of a property interest.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). To meet due process requirements, this hearing must afford an opportunity to be heard “at a meaningful time and in a meaningful manner.” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). “This requirement generally means that a party must have the opportunity for a hearing before the government initially interferes with the party’s protected property interest.” Schmit v. ITT Federal Elec. Int’l, 986 F.2d 1103, 1107 (7th Cir.1993) (quoting Abbott v. Louisiana Ins. Guaranty Ass’n, 889 F.2d 626, 631 (5th Cir.1989), cert. denied, 494 U.S. 1082, 110 S.Ct." }, { "docid": "3354055", "title": "", "text": "taken away without due process of law and, specifically, whether appellant was entitled to some hearing, either before or after the determination, beyond what was' accorded by the contract from which her property interest arose. This determination requires a balancing of interests: “[Identification of the specific dictates of due process generally requires consideration of three distinct factors: [f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, includ-. ing the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 17-18, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (Powell, J., concurring). Though “some kind of hearing is required at some time before a person is finally deprived of his property interests]”, Memphis Light, supra, 436 U.S. at 16, 98 S.Ct. at 1563; Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), “what may be required ... in dealing with one set of interests . . . may not be required in dealing with another set of interests.” Arnett v. Kennedy, supra, 416 U.S. at 155, 94 S.Ct. at 1645. But the requirement of an “opportunity to be heard ‘at a meaningful time and in a meaningful manner’ ”, Mathews v. Eldridge, supra, 424 U.S. at 333, 96 S.Ct. at 902, quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), does not mean that a pre-deprivation evidentiary hearing must always be held. Mathews v. Eldridge, supra, 424 U.S. at 333-34, 96 S.Ct. 893. The contract in this case accords a teacher significant procedural protections both before and after a determination is made to deny her increment. Evaluations of a teacher’s performance" }, { "docid": "16648574", "title": "", "text": "not sustained at the final hearing, the delinquency is cancelled, N.Y.Penal Law § 70.40(3)(a), and the “interruption” of the sentence occasioned by a delinquency “shall not apply”. N.Y.Exec. Law § 259-i(3)(h). Our problem in this case is what happens when due to insufficient time remaining be fore expiration of a defendant’s sentence it is impossible or inconvenient to hold a final revocation hearing before expiration of a defendant’s sentence. Our answer is that without providing a final revocation hearing, the state may not constitutionally hold a defendant beyond his original, unadjusted, maximum expiration date unless a final hearing would have been impracticable. Under both the due-process clause and state law, an inmate has a liberty interest in being released upon the expiration 'of his maximum term of imprisonment. Since an inmate parole grantee has a liberty interest in being released from prison as soon as possible, Green v. McCall, 822 F.2d 284, 287-90 (2d Cir.1987), it surely follows that he also has a liberty interest in being set free at the end of his term. Id. at 289 (“[sjince * * * inmates for whom no parole date had been set could have some protectable interest, we are hard pressed to believe that th[e] Court would not also find that a protectable interest is possessed by an inmate whose release date has already been set and is less than six months away”). Calhoun, therefore, had a liberty interest in his release from confinement on June 9, 1985, the deprivation of which should not have occurred without due process. Due process requires, as a general matter, an “opportunity to be heard ‘at a meaningful time and in a meaningful manner’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). In the ordinary parole-revocation case, New York does provide an adequate opportunity to be heard. First, providing the preliminary hearing assures that a declaration of delinquency, and thus an interruption of sentence, will not occur without at least a" }, { "docid": "7700223", "title": "", "text": "So long as a property deprivation is not de minimis, “its gravity is irrelevant to the question of whether account must be taken of the due process clause.” Goss v. Lopez, 419 U.S. 565, 576, 95 S.Ct. 729, 737, 42 L.Ed.2d 725 (1975). In this case, even assuming Officer Stolburg’s description of the vehicle to be accurate, Propert’s economic interest in his car was certainly more than de minimis. Cf. Price v. City of Junction, Texas, 711 F.2d 582, 589 (5th Cir.1983) (“Whether a junk car has little or great value, it is constitutionally protected property.”). Having determined that Propert possessed a protected property interest in his automobile, the next question is what process was due. “The essence of due process is the requirement that ‘a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.’ ” Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171-72, 71 S.Ct. 624, 648-49, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)). Thus, the due process clause requires, at minimum, that the government provide notice and some kind of hearing before final deprivation of a property interest. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 102 S.Ct. 1148, 1156, 71 L.Ed.2d 265 (1982) (“[I]t has become a truism that ‘some form of hearing’ is required before the owner is finally deprived of a protected property interest.”) (citation omitted) (emphasis in original); Gray Panthers v. Schweiker, 652 F.2d 146, 165 (D.C.Cir.1980) (defining “core requirements” of due process as “adequate notice ... and a genuine opportunity to explain”). The notice provided must be “reasonably certain to inform those affected,” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), and the opportunity to be heard must be given “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). Beyond these threshold procedural requirements, the contours" } ]

[ { "docid": "22605816", "title": "", "text": "San Diego, 5 F.3d 1273, 1274 (9th Cir.1993). All factual allegations set forth in the complaint “are taken as true and construed in the light most favorable to [plaintiffs.” Epstein, 83 F.3d at 1140. Indeed, factual challenges to a plaintiffs complaint have no bearing on the legal sufficiency of the allegations under Rule 12(b)(6). Yet, in this case, defendants’ arguments in favor of affirming the dismissal of plaintiffs’ federal claims rest almost entirely on factual challenges. More importantly, the district court’s decision to dismiss plaintiffs’ federal claims was rooted in defendants’ factual assertions. In granting defendants’ motions, the court assumed the existence of facts that favor defendants based on evidence outside plaintiffs’ pleadings, took judicial notice of the truth of disputed factual matters, and did not construe plaintiffs’ allegations in the light most favorable to plaintiffs. We therefore also reverse the district court’s dismissal of plaintiffs’ § 1983 claims alleging violations of the First, Fourth, and Fourteenth Amendments on these independent grounds. As a general rule, “a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Branch, 14 F.3d at 453 (citation omitted). Rule 12(b)(6) expressly provides that when: matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Fed.R.Civ.P. 12(b)(6) (emphasis added). There are, however, two exceptions to the requirement that consideration of extrinsic evidence converts a 12(b)(6) motion to a summary judgment motion. First, a court may consider “material which is properly submitted as part of the complaint” on a motion to dismiss without converting the motion to dismiss into a motion for summary judgment. Branch, 14 F.3d at 453 (citation omitted). If the documents are not physically attached to the complaint, they may be considered if the documents’ “authenticity ... is not contested” and “the plaintiffs complaint necessarily relies” on them. Parrino v. FHP, Inc., 146 F.3d" } ]

[ { "docid": "22970597", "title": "", "text": "S.Ct. 2689, 61 L.Ed.2d 433 (1979), a mistaken arrest and detention pursuant to a facially valid warrant is not unconstitutional. Finally, the court dismissed the state law claim without prejudice. Gay now appeals, claiming, first, that the district court erred in converting the motion to dismiss into a motion for summary judgment without giving him notice and an opportunity to present pertinent material, and second, that the district court erred in granting summary judgment to the defendants. II. Under Rule 12(b) of the Federal Rules of Civil Procedure, when matters outside the pleadings are submitted with a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” In interpreting the requirements of this rule, this court has held that the term “reasonable opportunity” requires that all parties be given “ ‘some indication by the court ... that it is treating the 12(b)(6) motion as a motion for summary judgment,’ with the consequent right in the opposing party to file counter affidavits or pursue reasonable discovery.” Johnson v. RAC Corp., 491 F.2d 510, 513 (4th Cir.1974) (quoting Dale v. Hahn, 440 F.2d 633, 638 (2d Cir.1971)). See also C. Wright & Miller, 5 Federal Practice and Procedure § 1366 (1969). When a party is aware that material outside the pleadings is before the court, the party is on notice that a Rule 12(b)(6) motion may be treated as a motion for summary judgment. See, e.g., Portland Retail Druggists Association v. Kaiser Foundation Health Plan, 662 F.2d 641, 645-46 (9th Cir.1981); Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 392-93 (6th Cir.1975). However, notification that a Rule 12(b)(6) motion may be converted is only one of the requirements of Rule 12. Once notified, a party must be afforded a “reasonable opportunity for discovery” before a Rule 12(b)(6) motion may be converted and" }, { "docid": "16438617", "title": "", "text": "set forth the requirements imposed on Megan under 25 Pa. Cons.Stat. Ann. § 17-1719-A(14) in order to qualify for extracurricular activities. In their responsive pleadings, the Angstadts contended that the District Court could consider the letters as materials outside the pleadings only after converting the motion to dismiss to a summary judgment motion to afford them an opportunity to submit additional materials under Federal Rule of Civil Procedure 56. The District Court granted the motion to dismiss, holding that the requirements for participation were not disputed by the Angstadts and were integral to the complaint, and that the Angstadts had failed to state a claim on the First Amendment, Due Process, and Equal Protection grounds pleaded. II. DISCUSSION We exercise plenary review of a dismissal order pursuant to Federal Rule of Civil Procedure 12(b)(6). A. Motion to Dismiss and Summary Judgment The Angstadts argue that because “[i]n determining whether a claim should be dismissed under Rule 12(b)(6), a court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record,” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994), the District Court erred in considering information set forth outside the complaint. However, we have recognized that “[ajlthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.2002) (internal quotation marks and citations omitted) (emphasis deleted). The gravamen of the Angstadts’ complaint is that the requirements for participating in extracurricular activities are unreasonable, arbitrary and capricious, but the Angstadts neither enumerate the requirements generally nor specify the requirements to which they object. These requirements were integral to the complaint, as the Angstadts’ claim could not be evaluated without some reference to them. In light of the Angstadts’ failure to enumerate them for the District Court, the School District sensibly undertook to do so. The Angstadts do not dispute the factual" }, { "docid": "23236961", "title": "", "text": "and constructive fraud. On the Defendant’s motion, the district court dismissed the claims with prejudice. SFM appeals the dismissal of the breach of fiduciary duty and constructive fraud claims. II. Jurisdiction and Standard of Review We have jurisdiction over the appeals of final decisions of the district court pursuant to 28 U.S.C. § 1291. We exercise de novo review as to the district court’s decision to grant a motion to dismiss. Cachia v. Islamorada, 542 F.3d 839, 841-42 (11th Cir.2008). We review the district court’s refusal to grant leave to amend for abuse of discretion, although we exercise de novo review as to the underlying legal conclusion that an amendment to the complaint would be futile. Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir.1999). III. Discussion A. First, SFM argues that the district court erred in converting the Defendant’s Rule 12(b)(6) motion to dismiss into a motion for summary judgment without giving notice to the Plaintiff. Reading the Order of the district court, it is clear that the court did not do that. The district court did, however, consider and rely upon the PB Agreement in granting the Defendant’s motion to dismiss. According to SFM, consideration of the document converted the Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment, which would have required notice of the conversion to the parties. SFM claims it was prejudiced by the lack of notice and the lack of opportunity for discovery. The Defendant argues that the district court’s consideration of the PB Agreement was proper because the document was incorporated by reference into the complaint and the document was central to the Plaintiffs claim. In general, if it considers materials outside of the complaint, a district court must convert the motion to dismiss into a summary judgment motion. See Fed.R.Civ.P. 12(b). There is an exception, however, to this general rule. In ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is (1) central to the plaintiffs claim, and (2) its authenticity is not challenged. Day v. Taylor, 400 F.3d 1272," }, { "docid": "22894422", "title": "", "text": "have probable cause to arrest Sands because he was aware that the statute of limitations had expired. 2. The district attorney’s failure to timely schedule a hearing and his false statements in the application for the Governor’s Warrant despite Sands’ offer to return to Pennsylvania once he advised her of the date of the hearing were administrative actions not protected by absolute immunity. 3. The District Court improperly relied on documents outside the complaint and its exhibits in ruling on the Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. A. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s grant of a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Vallies v. Sky Bank, 432 F.3d 493, 494 (3d Cir.2006). “In evaluating the propriety of the dismissal, we accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002). Nonetheless, “a court need not credit a plaintiffs ‘bald assertions’ or ‘legal conclusions’ when deciding a motion to dismiss.” Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir.1997) (citing In re: Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir.1997)). B. We first address Sands’ contention that the District Court erred in referring to the following two documents attached to the defendants’ motions to dismiss: 1) the March 29, 2004 trial court order granting a new trial in the contract action and 2) the transcript of the preliminary hearing in December of 2004. She asserts that by doing so the District Court converted the defendants’ motions into requests for summary judgment without giving her notice or an opportunity to respond. Generally, in ruling on a motion to dismiss, a district court relies on the complaint, attached exhibits, and matters of public record. Pension Benefit Guar. Corp. v. White Consol. Industries, Inc., 998 F.2d" }, { "docid": "10809355", "title": "", "text": "DRONEY, Circuit Judge: This is an appeal from the district court’s grant of summary judgment against the plaintiff and its prior grant of a motion to dismiss one count of the amended complaint. Plaintiff-Appellant Linda Velez (‘Velez”) brought this action against Betsy Sanchez (“Sanchez”), Sanchez’s sister Shari Munoz, and Sanchez’s and Shari’s mother Yolanda Munoz under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-19, and New York state law. For the reasons that follow, we affirm in part and vacate and remand in part. BACKGROUND I. Procedural Background and Standards of Review Velez filed this action on November 5, 2004. In January of 2006, the defendants moved to dismiss her amended complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Rule 12(b)(6)”). The district court dismissed certain claims, including Velez’s breach of contract claim, and converted the motion to dismiss as to the remaining claims into a motion for summary judgment. The court then allowed the parties to complete discovery and submit additional materials. After discovery, the court found sua sponte that it lacked subject matter jurisdiction over Velez’s ATS claims and converted them to a claim for a civil remedy under the Trafficking Victims Protection Reauthorization Act (“TVPRA”), 18 U.S.C. § 1595, but granted summary judgment to the defendants on all federal claims. Velez v. Sanchez, 754 F.Supp.2d 488, 495-500 (E.D.N.Y.2010). The district court also declined to exercise subject matter jurisdiction over the remaining state law claims and counterclaims. Id. at 500. This posture requires us to apply different standards of review to Velez’s appealed claims. We review the dismissal of her breach of contract claim de novo, “accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” City of Pontiac Gen. Emps. ’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011) (citation omitted). We also review the district court’s summary judgment decision on her claims under the TVPRA and FLSA de novo and apply “the same" }, { "docid": "1400360", "title": "", "text": "at 1364, 59 USPQ2d at 1046 (explaining that “dismissal of a lawsuit against a private party pursuant to § 1498(a) is a dismissal because of the successful assertion of an affirmative defense rather than a dismissal because of the district court’s lack of subject matter jurisdiction over the patent infringement claim”) (citations omitted). Consequently, we vacate the order dismissing the complaint for lack of jurisdiction. B Although the dismissal was legally incorrect, BNFL and Duratek argue that the district court’s ruling may nonetheless be harmless error if there is sufficient evidence in the record to grant summary judgment in their favor on a section 1498(a) affirmative defense. To support this argument, they cite Crater, 255 F.3d at 1369, 59 USPQ2d at 1049 (affirming dismissal of infringement claim because, although the district court improperly dismissed the case, summary judgment on such affirmative defense was proper under the facts of that case). The procedural posture in Crater, however, differs from the present case. Crater involved a dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Id. at 1366, 255 F.3d 1361, 59 USPQ2d at 1047. Under that rule, when “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Fed.R.Civ.P. 12(b); Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157, 1164, 26 USPQ2d 1038, 1044 (Fed.Cir.1993) (“Rule 12(b)(6) provides that if matters outside the complainant’s pleading are presented to the court the motion shall be treated as one for summary judgment un der Rule 56.”). The court in Crater was thus justified in treating the dismissal as a summary judgment since the Federal Rules of Civil Procedure permitted that approach and the parties did not dispute any issue of material fact. The present case involves a dismissal under Rule 12(b)(1), rather than under Rule 12(b)(6). Unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion cannot be converted into a motion for summary judgment. See generally Fed.R.Civ.P. 12. In fact, Rule 12(b)(6) is the" }, { "docid": "11785269", "title": "", "text": "in a Memorandum Opinion and Order and entered judgment in defendants’ favor on all remaining claims. Dworkin v. Hustler Magazine, Inc., 668 F.Supp. 1408 (C.D.Cal.1987). Appellants filed a notice of appeal taking their appeal from a number of the district court’s procedural and substantive rulings. In their brief, however, appellants have abandoned most of their grounds for appeal. At this stage, appellants no longer contest any of the procedural orders. Moreover, appellants no longer contest the dismissal of Inland Empire or Park Place. Accordingly, the only matters before us relate to the substantive merits of the Rule 12(c) dismissal and the summary judgment in favor of the Hustler defendants. Two amicus briefs have been filed in support of appellants, one by Citizens for Decency Through Law, Inc., the other by Gloria Steinem and Susan Brownmiller. The ami-cus briefs also raise the merits of the district court’s substantive decisions. I We review a summary judgment de novo. E.g., Webb Co. v. First City Bank (In re Softalk Publishing Co.), 856 F.2d 1328, 1330 (9th Cir.1988). We also review the district court’s decision to grant the Hustler defendants’ Rule 12(c) motion de novo. The principal difference between motions filed pursuant to Rule 12(b) and Rule 12(c) is the time of filing. Because the motions are functionally identical, the same standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog. In this case, the Hustler defendants’ Rule 12(c) motion was equivalent to a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief could be granted, and de novo review is therefore appropriate. See, e.g., Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 693 (9th Cir.1988) (observing that dismissal “for failure to state a claim upon which relief could be granted” is reviewed de novo, without mentioning Rule 12(b)(6)). II The district court granted summary judgment on Dworkin’s libel claims on two independent grounds. First, the court found that the Features could not reasonably be understood as expressing statements of fact about Dworkin, and therefore could not provide a basis for defamation" }, { "docid": "22846977", "title": "", "text": "under ERISA, it is clear that the district court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. This court has jurisdiction pursuant to 28 U.S.C. § 1291. However, we need not remand because of the district court’s error. “Since nothing in the analysis of the court[ ] below turned on the mistake, a remand would only require a new Rule 12(b)(6) label for the same Rule 12(b)(1) conclusion.” Morrison, 130 S.Ct. at 2877. Instead, “we proceed to address whether [plaintiffjs’ allegations state a claim.” Id. B We review de novo the district court’s dismissal for failure to state a claim. Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir.2009). We accept as true all well-pleaded allegations of material fact, and construe them in the light most favorable to the non-moving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031-32 (9th Cir.2008). We are not, however, required to accept as true allegations that contradict exhibits attached to the Complaint or matters properly subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. Id. at 1031. We can affirm “on any ground raised below and fairly supported by the record.” Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1226 (9th Cir.2009); see also Williamson v. General Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir.2000) (“If support exists in the record, a dismissal may be affirmed on any proper ground, even if the district court did not reach the issue or relied on different grounds or reasoning.”). Although generally the scope of review on a motion to dismiss for failure to state a claim is limited to the Complaint, a court may consider evidence on which the “complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to the plaintiffs claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006) (quoting Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.1994)). The court may “treat such" }, { "docid": "4018142", "title": "", "text": "ORDER The Memorandum disposition filed December 6, 1996, is redesignated an authored Opinion by Judge Joseph T. Sneed. OPINION SNEED, Circuit Judge: Appellants, plaintiffs below, are Native American students who attended Tempe Technical Institute (TTI) and took out federally-guaranteed student loans. Appellees, the Bureau of Health Education Schools/Programs (“ABHES”) and the Accrediting Commission of Career Schools and Colleges of Technology (“ACCSCT”), are nationally recognized accrediting agencies that accredited TTI. Appellants allege that ABHES and ACCSCT acted negligently by accrediting TTI. The district court dismissed this claim for failure to state a claim upon which relief can be granted. We have jurisdiction, 28 U.S.C. § 1291, and affirm. I. Rule 12(b) of the Federal Rules of Civil Procedure provides, in relevant part, as follows: If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. When appellees filed their 12(b)(6) motions to dismiss, they attached exhibits describing their accreditation procedures and standards for accreditation. The district court did not exclude these exhibits. Accordingly, appellants claim that the district court should have treated appellees’ 12(b)(6) motions as motions for summary judgment. This court has held that a 12(b)(6) motion need not be converted into a motion for summary judgment when matters outside the pleading are introduced, provided that “nothing in the record suggests] reliance” on those extraneous materials. North Star Int’l v. Arizona Corp. Comm’n, 720 F.2d 578, 582 (9th Cir.1988). In the present case, the district court stated that it did not rely on the exhibits submitted by ABHES and ACCSCT to justify its legal conclusion that plaintiffs had failed to state a claim upon which relief could be granted. Hence, the district court did not err by treating appellees’ motions as motions to" }, { "docid": "7471394", "title": "", "text": "Foundation” and thus that Hayes was not “acting in a fiduciary capacity at the time he incurred his $1.35 million deficit to the Foundation.” In re Hayes, No. 96 B. 44536, at 12, 17 (Bankr.S.D.N.Y. Apr. 16, 1997) (transcript of hearing). The district court affirmed on substantially the same reasoning, holding that Hayes was not “a trustee of an ‘express’ or ‘technical’ trust,” in part because “the bankruptcy court found that Hayes had not received ‘advance pay for future services,’ but instead ‘received legal fees as approved by the surrogate’s court for services rendered.’ ” See In re Hayes, 97 Civ. 4240, at 3-5 (Mar. 11, 1998) (Opinion and Order) [“Hayes I ”]. The Foundation then moved for reconsideration of the district court’s opinion on the ground that it had incorrectly applied a deferential standard of review to the bankruptcy court’s findings of fact. The Foundation’s motion was granted, but the district court, applying de novo review, again affirmed. See In re Hayes, 97 Civ. 4240, at 3 (Apr. 13, 1998) (Order) [“Hayes 77”]. The Foundation then brought the present appeal. DISCUSSION The record is somewhat ambiguous as to whether the bankruptcy court dismissed the Foundation’s complaint under Bankruptcy Rule 7012 or 7056. See In re Hayes, No. 96 B. 44536, at 17 (claim “dismissed for failing to state a cause of action upon which relief may be granted”); Hayes II, at 1 (“The bankruptcy court ... dismissed the Foundation’s complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 56 .... ”); see also Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75-76 (2d Cir.1998) (court may convert motion to dismiss to one for summary judgment); Morelli v. Cedel, 141 F.3d 39, 45 (2d Cir.1998) (“Consideration of matters outside the pleadings converts the defendant’s motion to dismiss into a summary judgment motion.”). Because the bankruptcy court’s decision was made in the context of a ruling on the Foundation’s motion for summary judgment and the court took note of the parties’ submissions, we construe the court’s decision as a grant of summary judgment under Bankruptcy Rule 7056. Summary judgment is appropriate only" }, { "docid": "21853611", "title": "", "text": "hearing on the motion to dismiss, the district court, sua sponte, treated the motion as one for summary judgment and then, relying on the documents pertaining to the disciplinary proceedings, granted summary judgment in favor of defendants. Garaux was not present at that hearing and claims that he was never notified that the motion to dismiss was being construed as a motion for summary judgment. ■ ’ Garaux contends that the district court erred in sua sponte treating the defendants’ motion to dismiss pursuant to Fed.R. CivlP. 12(b) as a motion for summary judgment' pursuant to Fed.R.Civ.P. 56 because the district court failed to notify him of its intention to do so. Rule 12(b)(6) provides that when a defendant raisés the defense of failure to state a claim upon which relief can be granted and “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” (emphasis supplied). Rule 56(c) provides that a motion for summary judgment must be served at least 10 days before the time fixed for the hearing on the motion. There is general agreement that where matters outside the pleadings will be considered in disposition of a Rule 12(b)(6) motion, so as to convert it into one for summary judgment pursuant to Rule 56, the non-moving party must be sufficiently informed or aware of that fact and be afforded a reasonable opportunity to present all material made pertinent to such a motion by Rule 56. See, e.g., Portland Retail Druggists Association v. Kaiser Foundation Health Plan, 662 F.2d 641, 645 (9th Cir.1981); see also 5 C. Wright & A. Miller, Federal Practice, and Procedure § 1366 (1969). However, there is some disagreement in the circuits on the issue whether a district court must, strictly comply with the notice requirements of Rule 56(c) when it converts a motion under Rule 12(b)(6) into one for summary judgment." }, { "docid": "23177887", "title": "", "text": "a federal court. Id. Thus, the district court here was incorrect in stating that a motion to dismiss on Entire Controversy grounds is a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Such an affirmative defense could properly be the grounds for a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R.Crv.P. 12(b)(6). Indeed, defendants’ motion papers below reflect that the motion to dismiss was made pursuant to Rule 12(b)(6). See App. at 77. However, a motion to dismiss pursuant to Rule 12(b)(6) was not the proper vehicle in this case. We held in Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir.1978), that if a statute of limitations “bar is not apparent on the face of the complaint, then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6).” This holding applies not only to a statute of limitations defense, but also to any affirmative defense raised pursuant to Rule 8(c), including res judicata and the Entire Controversy Doctrine. The claimed Entire Controversy bar in this matter was not “apparent on the face of the complaint.” Bethel, 570 F.2d at 1174. Thus, the issue could not be resolved via a Rule 12(b)(6) motion. The district court could have properly pursued either of two procedures. It could have denied the motion without prejudice to renew in the form of a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Alternatively, the district court could have converted the Rule 12(b)(6) motion into a Rule 56 motion pursuant to Fed.R.Civ.P. 12(b), thereby affording “all parties ... reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Instead, the district court essentially converted this Rule 12(b)(6) motion into a Rule 56 motion without giving Rycoline that opportunity. In so doing, it erred. III. We now reach the more fundamental issue of whether the district court was correct in determining that the Entire Controversy Doctrine barred this action, regardless of the procedural path it took in arriving at" }, { "docid": "10426002", "title": "", "text": "in 1982 and 1986 obtained default judgments in the total amount of $32,000,000. They now seek to enforce those judgments pursuant to the Algerian Accords and pursuant to the California Uniform Foreign Money-Judgments Recognition Act. Cal.Civ.Proc.Code §§ 1713-1713.8 (“Foreign Money-Judgments Act” or the “Act”). Pahlavi filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) to which she attached a number of documents containing extrinsic evidence to support her assertion that the judgments were rendered without due process of law. At a hearing on March 29, 1993, the district court recognized that this was a speaking motion and converted it to a motion for summary judgment. It then gave the parties a number of months to submit further evidence and on January 4, 1994 held the final hearing at which it granted summary judgment for Pahlavi. It is from that judgment that the Banks have now appealed. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s interpretation of treaties and related executive orders de novo. See United States v. Washington, 969 F.2d 752, 754-55 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1945, 123 L.Ed.2d 651 (1993). Executive agreements, like the Algerian Accords, are interpreted in the same manner as treaties and reviewed by the same standard. See Air Canada v. United States Dep’t of Transp., 843 F.2d 1483, 1486 (D.C.Cir.1988); see also Boeing Co., 771 F.2d at 1283-84. We review grants of summary judgment de novo. See Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1533 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 70 (1985). DISCUSSION A. Summary Judgment Issues. Once the district court decided to convert Pahlavi’s motion from a motion to dismiss to a motion for summary judgment, it was required to give the parties a “reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed.R.Civ.P. 12(b). In so doing, a district court need only apprise the parties that" }, { "docid": "12622699", "title": "", "text": "district court dismissed each of Hager’s claims against NationsBank. Hager timely appealed, arguing that the district court erred in dismissing her ERISA claims. Hager does not appeal the district court’s dismissal of her state law claims. II. DISCUSSION NationsBank argued to the district court that Hager’s ERISA claims should be dismissed under either Rule 12(b)(1), for lack of subject matter jurisdiction, or alternatively under Rule 12(b)(6), for failure to state a claim. NationsBank premised its motion to dismiss on its contention, supported by an affidavit attached to its motion, that Hager failed to exhaust her administrative remedies before filing suit. The district court explicitly relied on NationsBank’s affidavit, as well as on documents attached to Hager’s complaint, in its opinion dismissing Hager’s claims for failing to exhaust, thus converting the 12(b)(6) motion into a 12(e) motion. See Fed. R. Civ. P. 12(e); Gutierrez v. City of San Antonio, 139 F.3d 441, 444 n. 1 (5th Cir.1998). We therefore view the district court’s order dismissing Hager’s claims as either an order dismissing for lack of subject matter jurisdiction or as a grant of summary judgment to NationsBank. See Gutierrez, 139 F.3d at 444 n. 1; Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir.1990). We review dismissals for lack of subject matter jurisdiction and grants of summary judgment de novo. See John G. & Marie Stella Kenedy Mem’l Found. v. Mauro, 21 F.3d 667, 670 (5th Cir.1994) (stating that review of dismissal under Rule 12(b)(1) is de novo); Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994) (stating that review of grant of summary judgment is de novo). We can affirm the district court’s dismissal of Hager’s claims if dismissal was appropriate on either ground. See United States v. Real Property Located at 14301 Gateway Boulevard West, 123 F.3d 312, 313 (5th Cir.1997) (stating that “we will not reverse a judgment of the district court if it can be affirmed on any ground, regardless of whether the -district court articulated the ground”); see also Trauma Serv. Group v. United States, 104 F.3d 1321, 1324 (Fed.Cir.1997) (stating that where" }, { "docid": "23127043", "title": "", "text": "Defendants further asserted that plaintiffs failed to abide by the administrative remedies provided by ERISA and the insurance policy in question and, therefore, that the action was filed prematurely.' Plaintiffs filed a motion in opposition to defendants’ motion to dismiss. In their motion, plaintiffs requested that the case be remanded back to state court pursuant to 28 U.S.C. § 1447(c). On June 4, 1991, the district court dismissed plaintiffs’ complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. This timely appeal followed. II. A. Plaintiffs first challenge the dismissal of their complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). They argue that because the district court considered matters beyond the pleadings in granting the dismissal that the dismissal is in effect a grant of summary judgment under Federal Rule of Civil Procedure 56. Second, plaintiffs also argue that the district court erred when it failed to give them ten days notice of its intent to grant summary judgment in favor of defendants. From the record, it appears that the district court did consider matters outside the pleadings in dismissing this case. When matters outside the pleadings are presented to and considered by the court in a Rule 12(b)(6) motion, the motion is treated as a motion for summary judgment. See Friedman v. United States, 927 F.2d 259, 261 (6th Cir.1991). When matters outside the pleadings are considered in ruling on a Rule 12(b)(6) motion, the parties must be given a reasonable opportunity to present all material made pertinent to the motion under Rule 56. Id. Plaintiffs essentially argue that because they were not given explicit notice that the district court would rely on matters outside the pleadings, they were not given a reasonable opportunity to respond to such matters. However, the record belies such assertion. In this case, plaintiffs had ample opportunity to respond to defendants’ evidence. Defendants filed their motion to dismiss on April 27, 1989. They filed an additional memorandum with exhibits in September 1989 and an additional supplemental memorandum with exhibits in November 1989. The district court did" }, { "docid": "22377958", "title": "", "text": "as the loan fund guarantor in Arizona. Governor Symington filed a motion to dismiss, as did USAF. Parks filed a motion for partial summary judgment. On January 25, 1993, the district court held a hearing on the motions to dismiss, at which time it orally granted them. In dismissing the complaint, the court found that the Higher Education Act (HEA) does not provide a private right of action to parties in Parks’ position. It also ruled that no action or conduct complained of had taken place under color of state law. It did not directly address the § 1981 claim. The district court filed its final order granting the motions to dismiss with prejudice on September 1, 1993, and this appeal followed. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is a ruling on a question of law and as such is reviewed de novo. Everest & Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir.1994). We take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party. Id. A complaint should not be dismissed unless a plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Id. When a plaintiff has attached various exhibits to the complaint, those exhibits may be considered in determining whether dismissal was proper without converting the motion to one for summary judgment. Cooper v. Bell, 628 F.2d 1208, 1210 n. 2 (9th Cir.1980). DISCUSSION A. Private Right of Action Under the Higher Education Act There is no express right of action under the HEA except for suits brought by or against the Secretary of Education. See 20 U.S.C. § 1082(a)(2). The district court found that no private right of action for educational institutions to sue loan guarantors was implied in the statute. We agree. In determining whether a federal statute confers" }, { "docid": "22846978", "title": "", "text": "or allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. Id. at 1031. We can affirm “on any ground raised below and fairly supported by the record.” Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1226 (9th Cir.2009); see also Williamson v. General Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir.2000) (“If support exists in the record, a dismissal may be affirmed on any proper ground, even if the district court did not reach the issue or relied on different grounds or reasoning.”). Although generally the scope of review on a motion to dismiss for failure to state a claim is limited to the Complaint, a court may consider evidence on which the “complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to the plaintiffs claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006) (quoting Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.1994)). The court may “treat such a document as ‘part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).’ ” Id. (quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003)). In addition to the Complaint itself, we have taken into consideration two documents on which the Complaint necessarily relies. First, we have taken into consideration the prospectus for the “NEA Value-builder Variable Annuity” distributed by Security Benefit on May 1, 2007. Plaintiffs quoted this prospectus in their Complaint and provided the web address where the prospectus could be found online. Plaintiffs thereby incorporated the prospectus'into the Complaint by reference. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (explaining that courts ruling on 12(b)(6) motions to dismiss may take into consideration “documents incorporated into the complaint by reference”). Second, we take into consideration information posted on certain NEA and NEAMBC web pages that Plaintiffs referenced in the Complaint and included in the record on appeal." }, { "docid": "6245563", "title": "", "text": "and damages for breach of contract measured by the difference in the premiums that USAA would have charged for 25% rather than 50% BOL coverage. Pursuant to Federal Rule of Civil Procedure 12(b)(6), USAA moved to dismiss the complaint for failure to state a claim. The district court stayed discovery and class certification pending adjudication of the motion to dismiss. After a hearing, the district court entered an order dismissing the complaint. The district court held § 627.7011(2) does not require an insurance provider to obtain the policyholder’s written selection on an approved Regulation Office form before issuing a policy with more than 25% BOL coverage. The Allens timely filed a notice of appeal. II. STANDARD OF REVIEW We review de novo a Rule 12(b)(6) dismissal for failure to' state a claim and construe the factual allegations in the complaint in the light most favorable to the plaintiff. Lord Abbett Mun. Income Fund, Inc. v. Tyson, 671 F.3d 1203, 1206 (11th Cir.2012). This Court ordinarily does not consider anything beyond the face of the complaint and documents attached thereto when analyzing a motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1368-69 (11th Cir.1997). However, where a document— such as an insurance policy — is central to the plaintiffs claim, its contents are not in dispute, and the defendant attaches the document to its motion to dismiss, this Court may consider that document as well. Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir.2007). Under Rule 12(b)(6), dismissal is proper when, “on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993). This Court may affirm for any reason supported by the record, even if not relied upon by the district court. United States v. $121,100.00 in U.S. Currency, 999 F.2d 1503, 1507 (11th Cir.1993). III. DISCUSSION The Mens signed USAA’s contract for 50% BOL coverage. They did not, however, give written consent" }, { "docid": "2919947", "title": "", "text": "the district court erroneously dismissed the action pursuant to Rule 12(b)(1), we could nonetheless affirm the dismissal if dismissal were otherwise proper based on failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”). Application of the Rule 12(b)(6) standard to the defendant’s motion is complicated by the fact that both parties have submitted matters outside the pleadings along with their briefs. See Defi’s Mem., Exhibit (“Ex.”) A (Declaration of Mary Zdanowicz); PL’s Opp’n, Ex. 1 (the defendant’s 2009 tax return). As a general rule, if “matters outside the pleadings are presented to and not excluded by the court” on a Rule 12(b)(6) motion, “the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). But before a motion is so converted, “[a]Il parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Id.; see Kim v. United States, 632 F.3d 713, 719 (D.C.Cir.2011) (“In converting the motion, district courts must provide the parties with notice and an opportunity to present evidence in support of them respective positions.”). This ensures that “summary judgment treatment would be fair to both parties.” Tele-Commc’ns of Key West, Inc. v. United States, 757 F.2d 1330, 1334 (D.C.Cir.1985). Because no discovery has occurred in this case, and because the legal issue of enterprise coverage depends on factual questions that have not been adequately developed at this early stage of the proceedings, the Court deems it premature to convert the defendant’s motion to one for summary judgment. Accordingly, the Court will exclude and therefore not consider the extra-pleading materials submitted by the parties, and will analyze the defendant’s motion under Rule 12(b)(6). III. The Defendant’s Motion to Dismiss A. Standard of Review A Rule 12(b)(6) motion tests whether the complaint “state[s] a claim upon which re lief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678," }, { "docid": "22270245", "title": "", "text": "of discovery, Deseret Book filed a motion asking the district court to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and award Deseret Book attorney fees. Dr. Hughes joined Deseret Book’s Rule 12(b)(6) motion and filed a motion for summary judgment on several affirmative defenses. The district court granted the Rule 12(b)(6) motion, granted summary judgment on the affirmative defense of laches, and denied the request for attorney fees. On appeal, Dr. Jacobsen challenges the district court’s dismissal of his complaint pursuant to Fed.R.Civ.P. 12(b)(6) as well as the court’s granting summary judgment on the affirmative defense of laches. Dr. Jacobsen also appeals the district court’s refusal to strike defendants’ expert reports or allow Dr. Jacobsen additional time to designate expert witnesses. Dr. Hughes and Deseret Book filed a cross-appeal seeking attorney fees. We exercise jurisdiction under 28 U.S.C. § 1291 and reverse the 12(b)(6) dismissal, the grant of summary judgment on laches, and the refusal to strike the expert reports. Both Dr. Jacobsen’s request for additional time to designate experts and Dr. Hughes’ and Deseret Book’s request for attorney fees are moot. II. Motion to Dismiss Dr. Jacobsen argues the district court erred in granting Dr. Hughes’ and Deseret Books’ motion to dismiss. “We review a dismissal under Rule 12(b)(6) de novo.” Work v. United States, 269 F.3d 1185, 1190 (10th Cir.2001). Our “ ‘function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted.’ ” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991)). In addition to the complaint, the district court may consider documents referred to in the complaint if the documents are central to the plaintiffs claim and the parties do not dispute the documents’ authenticity. See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997). Because" } ]

[ { "docid": "423534", "title": "", "text": "his offense with the additional reason on one occasion of unsatisfactory institutional conduct. Other inmates who had been denied parole because of the “seriousness or circumstances of the offense” filed briefs in this court as amici curiae. Plaintiff and amici argue that the procedures and practices of the Indiana Parole Board deprived them of due process of law as well as the rights to which they are entitled under the Indiana Administrative Adjudication Act. The district court found that the Indiana A.A.A. did not apply to Parole Board proceedings. Moreover, it concluded that while due process required certain safeguards in parole release proceedings, the Indiana parole procedure satisfied due process. II We will first consider whether the strictures of due process apply to the parole release procedures of the Indiana parole system. It is axiomatic that before due process protections can apply, there must first exist a protectible liberty or property interest. See, e. g., Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705-2706, 33 L.Ed.2d 548 (1972). Just last term, after the decision by the district court in this case, the United States Supreme Court considered whether inmates have a general, constitutionally protected interest in being conditionally released on parole before the expiration of a valid sentence. In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Court concluded that an inmate does not have a protectible expectation of parole unless that expectation is created by a state statute. According to the Court, a validly obtained conviction, with all its procedural safeguards, extinguishes a convict’s liberty in terest in release. A state is under no constitutional obligation to create a parole system, and even when it does, the mere possibility of parole does not a fortiori result in a protectible expectation of release. Rather, the state statute must be phrased in such a way that it creates a real expectation of and not just a unilateral hope for parole. 442 U.S. at 7-8, 11-12, 99 S.Ct. at 2103-2104, 2105-2106. The Court suggested that a" } ]

[ { "docid": "22606909", "title": "", "text": "that extent the general interest asserted here is no more substantial than the inmate’s hope that he will not be transferred to another prison, a hope which is not protected by due process. Meachum v. Fano, 427 U. S., at 225; Montanye v. Haymes, supra. B Respondents’ second argument is that the Nebraska statutory language itself creates a protectible expectation of parole. They rely on the section which provides in part: “Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because: “(a) There is a substantial risk that he will not conform to the conditions of parole; “(b) His release would depreciate the seriousness of his crime or promote disrespect for law; “(c) His release would have a substantially adverse effect on institutional discipline; or “(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.” Neb. Rev. Stat. §83-1,114 (1) (1976). Respondents emphasize that the structure of the provision together with the use of the word “shall” binds the Board of Parole to release an inmate unless any one of the four specifically designated reasons are found. In their view, the statute creates a presumption that parole release will be granted, and that this in turn creates a legitimate expectation of release absent the requisite finding that one of the justifications for deferral exists. It is argued that the Nebraska parole-determination provision is similar to the Nebraska statute involved in Wolff v. McDonnell, 418 U. S. 539 (1974), that granted good-time credits to inmates. There we held that due process protected the inmates from the arbitrary loss of the statutory right to credits because they were provided subject only to good behavior. We held that the statute created a liberty interest protected by due process guarantees. The Board argues in response that a presumption would be created only if the statutory conditions" }, { "docid": "22319824", "title": "", "text": "release. The Court of Appeals reversed. It compared the provisions of the Montana statute to those of the Nebraska statute in Greenholtz and found their structure and language virtually indistinguishable: “The Montana statute, like the Nebraska statute at issue in Greenholtz, uses mandatory language. It states that the Board ‘shall’ release a prisoner on parole when it determines release would not be harmful, unless specified conditions exist that would preclude parole. There is no doubt that it, like the Nebraska provision in Greenholtz, vests great discretion in the Board. Under both statutes the Board must make difficult and highly subjective decisions about risks of releasing inmates. However, the Board may not deny parole under either statute once it determines that harm is not probable.” 792 F. 2d 1404, 1406 (CA9 1986). The court thus held that respondents had stated a claim upon which relief could be granted, and remanded the case to the District Court for consideration of “the nature of the process which is due [respondents]” and “whether Montana’s present procedures accord that due process.” Id., at 1408. We granted certiorari, 479 U. S. 947 (1986), and now affirm. I — I I — I Greenholtz set forth two major holdings. The Court first held that the presence of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole release. The Court also held, however, that the Nebraska statute did create an “expectation of parole” protected by the Due Process Clause. 442 U. S., at 11. To decide whether the Montana statute also gives rise to a constitutionally protected liberty interest, we scrutinize it under the standards set forth in Greenholtz. The Nebraska statute involved in Greenholtz provides as follows: “Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because: “(a) There is a substantial risk that he will not conform to the conditions of parole; “(b) His release would depreciate the seriousness of his" }, { "docid": "6693400", "title": "", "text": "a sawed-off shotgun, shot and killed a police officer. After pleading guilty, Sharp received an indeterminate sentence of 30 to 125 years. Both Heidelberg and Sharp have been denied parole on several occasions. After the last denial, they filed this petition which the district court summarily dismissed. Heidelberg and Sharp filed a joint request for a certificate of appealability. It is well established that “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). While there is no constitutional right to parole, a state may create a protected liberty interest in parole through its statutes and regulations governing the parole decision-making process. See id. at 12, 99 S.Ct. 2100. A state creates an expectation of release that rises to the level of a liberty interest within the meaning of the Due Process Clause if its parole system requires release whenever a parole board or similar authority determines that the necessary prerequisites exist. See Board of Pardons v. Allen, 482 U.S. 369, 376, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). The Illinois parole release statute at issue in this case provides in relevant part: le) The Board shall not parole a person eligible for parole if it determines that: (1) there is a substantial risk that he will not conform to reasonable conditions of parole; or (2) his release at that time would deprecate the seriousness of his offense or promote disrespect for the law; or (3) his release would have a substantially adverse effect on institutional discipline. 730 ILCS 5/3-3-5(c) (1998) (formerly Ill.Rev. Stat. ch. 38, ¶ 1003 — 3—5(c)). Instead of directing the Board when to release an eligible inmate, Illinois has stated the rule in the negative; the Board shall not release the inmate if one of the above conditions exists. This court first considered Illinois’ parole release statute in Scott v. Illinois Parole and Pardon Bd., 669 F.2d 1185 (7th Cir.1982). Because the Illinois" }, { "docid": "21899806", "title": "", "text": "In Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Supreme Court held that there is no inherent constitutional right to be released on parole. It also held that the mere existence of a state parole system that establishes the possibility of parole does not create a liberty interest. However, it recognized . that the language of a parole statute itself could create a protected liberty interest. The Nebraska statute involved in Green-holtz stated that the Board of Parole “shall” order a prisoner’s release on parole unless one of four specified disqualifying factors was found to exist. The Court concluded that this statute created a legitimate expectation of parole and that state prisoners were entitled to some measure of due process protection. It emphasized that “this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.” Id. at 12, 99 S.Ct. at 2106. Parole release decisions in the Virgin Islands are governed by 5 V.I.C. § 4604 (1967). That statute provides that if it appears to the Board: that there is a reasonable probability that [a parole] applicant will live and remain at liberty without violating the laws and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may, in its discretion, authorize the release of such applicant on parole, (emphasis supplied). Thus the statute leaves parole decisions to the discretion of the Board, and, unlike the statute in Greenholtz, section 4604 does not require that the Board grant parole unless specified conditions are present. Nothing in the broad language of section 4604 creates a “legitimate claim of entitlement” to parole. Cf. Wagner v. Gilligan, 609 F.2d 866 (6th Cir. 1979) (per curiam) (no liberty interest created by Ohio statute under which parole authority may grant parole if, in its discretion, it determines that parole would further the interests of justice and be consistent with the welfare and security of society). Nor are there" }, { "docid": "6693402", "title": "", "text": "Supreme Court had not interpreted the parole statute prior to our decision in Scott, we looked to the Nebraska parole statute analyzed by the United States Supreme Court in Greenholtz. Noting certain similarities between the Nebraska statute and the Illinois statute, and looking to the rules promulgated by the Board for guidance, we held that Illinois’ parole statute “creates a presumption that an eligible inmate will be paroled unless one of the specified grounds for denial is found to exist.” Scott, 669 F.2d at 1190. In so holding, we concluded that Illinois’ parole release statute provides an inmate with a legitimate expectation of parole and, therefore, entitles him to “some measure of constitutional protection.” Id. We recognized, however, that “by stating its rule in the negative Illinois has left open the possibility that its statute can also be reasonably read as not creating an expectancy of release on parole.” Id. at 1189. In Hanrahan v. Williams, 174 Ill.2d 268, 220 Ill.Dec. 339, 673 N.E.2d 251 (Ill.1996), the Illinois Supreme Court considered the same parole statute that we had analyzed in Scott. Noting that it was not bound by our decision in Scott, see id. at 255-56, the Illinois Supreme Court concluded that the Board’s decision to grant or deny parole is completely discretionary outside of the few instances when the denial of parole is mandatory. See id. at 255. The court explained, [w]e believe that Illinois’ statutory criteria and the Board’s rules do not provide standards for release on parole sufficiently objective to allow a court to evaluate the Board’s decision to deny parole. We thus conclude that the legislature, in drafting the statutory language, intended the Board to have complete discretion in determining whether to grant parole when the denial of parole is not mandated by statute. Id. As the Illinois Supreme Court appropriately recognized, it was not bound by our holding in Scott. See Echo, Inc. v. Whitson Co., Inc., 121 F.3d 1099, 1102 n. 1 (7th Cir.1997) (citing West v. American Tel. & Tel. Co., 311 U.S. 223, 236, 61 S.Ct. 179, 85 L.Ed. 139 (1940)). We," }, { "docid": "7819322", "title": "", "text": "v. Lundgren, 528 F.2d 1050, 1053 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976). The cases cited by appellees, however, involved a now-repealed federal parole statute which contained provisions that are quite different from those now in effect. Compare 18 U.S.C. § 4203 (1969), with 18 U.S.C. § 4206 (Supp.1981) (1976). Thus, the cited cases have little relevance to the case at bar. In one post -Greenholtz case involving the current parole statute, the Fifth Circuit has stated that “a parole release decision does not invoke the protection of due process since the denial of parole does not amount to a loss of liberty.” Page v. United States Parole Commission, 651 F.2d 1083, 1086 (5th Cir. 1981) (per curiam) (alternative holding). The opinion contains no analysis of the federal parole statute to compare it with the Nebraska statute held in Greenholtz to create a limited liberty interest. For reasons stated in text, our own reading of the federal parole statute leads us to the conclusion that it does create an interest worthy of some due-process protection. . In Dumschat the Court held that the mere existence of a power to commute lawfully imposed sentences does not create a right or entitlement, even where the plaintiffs could show a consistent practice of granting commutations to most life inmates. In essence, due process was not implicated because the state was not required to act on prescribed grounds. . The Missouri parole statute provides, in part: When in its opinion there is reasonable probability that the prisoner can be released without detriment to the community or to himself, the board shall release on parole any person confined in any correctional institution administered by state authorities .... Mo.Ann.Stat. § 549.261(1) (Vernon) (Supp. 1981) (emphasis ours). The Nebraska parole provision at issue in Greenholtz provided: Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be'deferred because: (a) There is a substantial risk that he" }, { "docid": "2263580", "title": "", "text": "disciplinary action taken. (Emphasis added.) The District of Columbia Circuit has held that due process also applies to federal parole release procedures and requires that federal prisoners be given a written statement of reasons for denial of parole. Childs v. United States Board of Parole, 167 U.S.App.D.C. 268, 511 F.2d 1270 (1974). Judge Fahy said for the court at 1280: Just as the [Supreme] Court found in Wolff that the State, having created the valuable right to good time, must act according to constitutional safeguards when it withdraws the right, so here, where the federal government has made parole an integral part of the penological system, I believe it is also essential that authority to deny parole not be arbitrarily exercised. We conclude that due process includes as a minimum requirement that reasons be given for the denial of parole release. Ill The Illinois Unified Code of Corrections, effective January 1, 1973, provides that the Parole and Pardon Board in the Illinois Department of Corrections shall not parole a person eligible for parole if it determines that: (1) there is a substantial risk that he will not conform to reasonable conditions of parole; or (2) his release at that time would deprecate the seriousness of his offense or promote disrespect for the law; or (3) his release would have a substantially adverse effect on institutional discipline. Ill.Rev.Stats. ch. 38, § 1003-3-5(c). The Code of Corrections further provides in Section 1003-3-5(f) that: The. Board shall render its decision within a reasonable time after hearing and shall state the basis therefor both in the records of the Board and in written notice to the person on whose application it has acted. In its decision, the Board shall set the person’s release date, or if it denies parole it shall provide for a rehearing not more than 12 months from the date of denial. (Emphasis added.) Part of the legislative history of the Code consists of the commentaries of the council which drafted the Code. The “Council Commentary” following Section 1003-3-5 reads in part as follows: The Board should state one or more" }, { "docid": "22319825", "title": "", "text": "process.” Id., at 1408. We granted certiorari, 479 U. S. 947 (1986), and now affirm. I — I I — I Greenholtz set forth two major holdings. The Court first held that the presence of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole release. The Court also held, however, that the Nebraska statute did create an “expectation of parole” protected by the Due Process Clause. 442 U. S., at 11. To decide whether the Montana statute also gives rise to a constitutionally protected liberty interest, we scrutinize it under the standards set forth in Greenholtz. The Nebraska statute involved in Greenholtz provides as follows: “Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because: “(a) There is a substantial risk that he will not conform to the conditions of parole; “(b) His release would depreciate the seriousness of his crime or promote disrespect for law; “(c) His release would have a substantially adverse effect on institutional discipline; or “(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.” Neb. Rev. Stat. §83-1,114(1) (1981) (emphasis added). The statute also sets forth a list of 14 factors (including one catchall factor permitting the Nebraska Board to consider other information it deems relevant) that the Board must consider in reaching a decision. §§ 83-1,114(2) (a)-(n). In deciding that this statute created a constitutionally protected liberty interest, the Court found significant its mandatory language — the use of the word “shall” — and the presumption created — that parole release must be granted unless one of four designated justifications for deferral is found. See Greenholtz, 442 U. S., at 11-12. The Court recognized — indeed highlighted — that parole-release decisions are inherently subjective and predictive, see id., at 12, but nonetheless found that Nebraska inmates possessed a" }, { "docid": "23689591", "title": "", "text": "that the Nebraska statute “has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.” -U.S. at -, 99 S.Ct. at 2106. In dissent, Justice Marshall observed that the factors relevant to parole release in Nebraska are similar to the factors mentioned in the laws of 47 other states, from which he concluded that the majority’s analysis “would therefore suggest that the other statutes must also create protectible expectations of release.” - U.S. at -, 99 S.Ct. at 2115 (footnote omitted). Justice Marshall may be correct in implying that the majority accorded excessive significance to the “shall/unless” formula of the Nebraska statute. Once a legislature has identified as factors relevant to parole release decision-making such amorphous criteria as whether release will depreciate the seriousness of the crime and whether further correctional treatment will enhance the inmate’s capacity to be law-abiding, it is difficult to imagine that a board’s decisions will be different under a scheme that requires release unless adverse findings based on such criteria are made than under a scheme that simply obligates the board to consider such criteria in exercising its discretion. But one cannot fairly read the majority’s opinion in Greenholtz without concluding that the majority thought there was not only a difference, but a difference on which entitlement to due process safeguards depends. Despite Justice Marshall’s valiant attempt to maintain due process safeguards, the majority could not have called the Nebraska scheme “unique” if it believed that it resembled the statutes of the 47 other states that identify, as relevant to parole decision-making, the same factors mentioned in the Nebraska statute. The “shall/unless” formula was decisive for the Court. It is apparent that New York’s parole provisions, unlike Nebraska’s, do not establish a scheme whereby parole shall be ordered unless specified conditions are found to exist. Both the setting of an MPI and the decision whether to release at the expiration of the MPI are matters committed to the discretion of the Parole Board. While guidelines are used to structure the exercise of discretion," }, { "docid": "18342038", "title": "", "text": "and to what extent the Due Process Clause of the Fourteenth Amendment applies to discretionary parole release determinations. After distinguishing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which dealt with the right to due process at a parole revocation determination, the Supreme Court rejected the claim that a reasonable entitlement to due process is created merely because a state provides for the possibility of parole. Instead, the determination of whether an inmate is entitled to due process depends upon a case-by-case examination of each state’s statute. The Nebraska statute which was at issue in Greenholtz, supra, provides in pertinent part: “Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because: (a) There is a substantial risk that he will not conform to the conditions of his parole; (b) His release would depreciate the seriousness of his crime or promote disrespect for law; (c) His release would have a substantially adverse effect on institutional discipline; or (d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.” Neb.Rev.Stat. § 88-1,114(1). The Supreme Court found that the structure of the Nebraska statute together with the use of the word “shall” created a presumption that obligates the Nebraska Board to grant parole unless any one of the four statutory reasons are present. Because of the unique structure of the statute together with the use of the imperative, the Supreme Court found that a Nebraska inmate’s expectancy of release was entitled to some measure of constitutional protection. The wording and structure of the Nevada statute is significantly different. The relevant section, NRS 213.1099 provides: “. . . Limitations on powers of state board of parole commissioners to release prisoners on parole. 1. Except as provided in subsection 2, the board may release on parole a prisoner otherwise eligible for parole under" }, { "docid": "4236656", "title": "", "text": "made of the newspaper articles or any other crimes which plaintiff may have committed, and plaintiff does not argue that the reasons which the Board relied upon were insufficient or improper. We therefore affirm the district court’s holding that the Board properly relied upon the grounds set forth in the Illinois parole statute in denying plaintiff parole. Plaintiff argues that even if the Board did not consider the newspaper articles in making its determination, their mere presence in his parole file violates due process. Plaintiff relies primarily on the Supreme Court’s statement in Greenholz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), that “[t]he function of legal process ... is to minimize the risk of erroneous decisions.” 442 U.S. at 13, 99 S.Ct. at 2106. Plaintiff argues that the unverified and “highly inflammatory” allegations in the newspaper articles create a high risk that the Board will base its parole application determination on incorrect information, thereby violating plaintiff’s due process rights. Therefore, plaintiff asserts that the presence of the articles in his parole file does not minimize the risk of erroneous decisions by the Board and is unconstitutional. In Greenholz the Supreme Court held that there is no constitutional right to parole. 442 U.S. at 7, 99 S.Ct. at 2103. The Court further stated, however, that by establishing a parole system, a state may create an expectation for inmates of release on parole which is entitled to some due process protection. 442 U.S. at 12, 99 S.Ct. at 2106; United States ex rel. Scott v. Illinois Parole and Pardon Board, 669 F.2d 1185, 1188 (7th Cir.1982). In Scott, this court interpreted Illinois’ parole release statute and determined that under it “parole must be granted if none of the specified reasons for denial are found to exist.” 669 F.2d at 1189. Following the Supreme Court’s decision in Greenholz, we held that the Illinois statute therefore created a constitutionally protected expectation of release for prisoners eligible for parole. 669 F.2d at 1190. Thus, due process applies to the Board’s decision to deny" }, { "docid": "4084444", "title": "", "text": "since it would not be able to substantiate in the record either lack of rehabilitation or high parole risk. Clearly, this was not the intention of the Illinois Legislature when it enacted the statutes governing parole. If it had so intended, it certainly would not have granted to the Department of Corrections and subsequently the Parole and Pardon Board such broad discretion limited only by the requirement that such agency give due consideration to the inmate’s prison record. It should be noted that we are not questioning the result in Scott, rather we are simply delineating what we believe to be an additional infirmity of the Welsh decision when read in light of our subsequent decision in Scott. B. THE VALIDITY OF THE PAROLE BOARD’S RATIONALE UNDER DUE PROCESS. We now turn to a discussion of whether the rationale provided by the Parole Board met the due process requirements set forth in U.S. ex rel. Scott v. Ill. Parole and Pardon Bd., 669 F.2d 1185 (7th Cir.1982). In Scott, the court determined that the Illinois parole statute (Ill.Rev.Stat. ch. 38, § 1003-3-5), like the Nebraska statute in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), “provides [an inmate] with a legitimate expectation of parole entitled to some measure of constitutional protection.” Scott, 669 F.2d at 1190. Thus, the court held that due process required.the Parole Board to provide an applicant whose parole was denied with a statement of reasons which included both the grounds for the denial and the “essential facts” on which those grounds were based: “To satisfy minimum due process requirements a statement of reasons should be sufficient to enable a reviewing body to determine whether parole has been denied for an impermissible reason or for no reason at all. For this essential purpose, detailed findings of fact are not required, provided the Board’s decision is based upon consideration of all relevant factors and it furnishes to the inmate both the grounds for the decision ... and the essential facts upon which the Board’s inferences are based.” Scott, 669 F.2d at" }, { "docid": "18677812", "title": "", "text": "protectible liberty interest in being granted parole . which is subject to constitutional protection. Id. at 7, 99 S.Ct. at 2103. The Supreme Court did, however, acknowledge that such a protectible liberty interest can be created by state statute and observed that the Nebraska statute which stated that parole “shall” be granted “unless” certain circumstances existed created such a protectible interest. It is significant that the Court explicitly emphasized the “unique structure” of the Nebraska statute which vests in a prisoner a right to parole which is subject to abridgement only if certain limiting factors exist. Indeed, the Court of Appeals for the Seventh Circuit has recognized that the “shall/unless” language of the Nebraska statute was a “crucial” factor in the Supreme Court’s decision that the Nebraska statute created a protectible expectation of parole. Averhart v. Tutsie, 618 F.2d 479, 481 (7th Cir. 1980). See also Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979). The Illinois statute at issue here differs from the Nebraska statute and provides as follows: The Board shall not parole a person eligible for parole if it determines that: (1) there is a substantial risk that he will not conform to reasonable conditions of parole; or (2) his release at that time would deprecate the seriousness of his offense or promote disrespect for the law; or (3) his release would have a substantially adverse effect on institutional discipline. Ill.Rev.Stat. ch. 38, '§ 1003-3-5. The Illinois statute, unlike the “unique” statute in Greenholtz, does not directly vest in a prisoner a right to parole. Since the statute does not accord a right to parole, there is no protectible liberty interest which can be violated by the state’s denial of parole. Therefore, the court cannot address the issue of the sufficiency of the reasons for denying the plaintiff parole, and summary judgment on this issue must be entered. III. Unconstitutional Delegation of Powers The plaintiff alleges that in denying him parole the Prisoner Review Board has unconstitutionally assumed legislative and judicial powers. The plaintiff argues that the Prisoner Review Board has unconstitutionally overridden the statutory provisions" }, { "docid": "3743626", "title": "", "text": "prisoner a reasonable expectation that he will be released if certain criteria are met. See Heidelberg v. Illinois Prisoner Review Bd., 163 F.3d 1025, 1026 (7th Cir.1998) (citing Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100; Board of Pardons v. Allen, 482 U.S. 369, 376, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987)). In Greenholtz, the United States Supreme Court reviewed Nebraska’s state parole statute to determine whether it created a protectible liberty interest in parole. Nebraska’s parole statute provides that “[wjhenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because [one of four specifically designated reasons are found].” See Neb.Rev.Stat. § 83-1, 114(1) (1976) (emphasis added). In Allen, the Supreme Court reviewed Montana’s parole statute, which provides that “the board shall release on parole ... any person confined in the Montana state prison ... when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community.” Mont.Code Ann. § 46-23-201 (1985) (emphasis added). In both Greenholtz and Allen, the Supreme Court found that the statute at issue created a liberty interest in parole release because it contained mandatory language— the use of the word “shall” — that created a presumption that if certain criteria were satisfied, the prisoner would be released. See Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100; Allen, 482 U.S. at 377-78, 107 S.Ct. 2415. Similarly, in Solomon, we found that the federal parole statute, 18 U.S.C. § 4206(a), with its provision that if the statutory and regulatory guidelines are met the prisoner shall be released, gave the inmate an expectation of parole worthy of due process protection. Solomon, 676 F.2d at 285. “Whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.” Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100. Thompson argues that the District of Columbia’s parole system creates a legitimate expectation of parole release and therefore provides a liberty interest" }, { "docid": "22319823", "title": "", "text": "controlled by the principles established in this Court’s decision in Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979). In Greenholtz the Court held that, despite the necessarily subjective and predictive nature of the parole-release decision, see id., at 12, state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause. The Court concluded that the mandatory language and the structure of the Nebraska statute at issue in Greenholtz created an “expectancy of release,” which is a liberty interest entitled to such protection. Ibid. Although the District Court recognized that the Montana statute, like the Nebraska statute in Greenholtz, contained language mandating release under certain circumstances, it decided that respondents “were not entitled to due process protections in connection with the board’s denial of parole.” App. 17a. The court concluded that, because the Board is required to make determinations with respect to the best interest of the community and the prisoner, its discretion is too broad to provide a prisoner with a liberty interest in parole release. The Court of Appeals reversed. It compared the provisions of the Montana statute to those of the Nebraska statute in Greenholtz and found their structure and language virtually indistinguishable: “The Montana statute, like the Nebraska statute at issue in Greenholtz, uses mandatory language. It states that the Board ‘shall’ release a prisoner on parole when it determines release would not be harmful, unless specified conditions exist that would preclude parole. There is no doubt that it, like the Nebraska provision in Greenholtz, vests great discretion in the Board. Under both statutes the Board must make difficult and highly subjective decisions about risks of releasing inmates. However, the Board may not deny parole under either statute once it determines that harm is not probable.” 792 F. 2d 1404, 1406 (CA9 1986). The court thus held that respondents had stated a claim upon which relief could be granted, and remanded the case to the District Court for consideration of “the nature of the process which is due [respondents]” and “whether Montana’s present procedures accord that due" }, { "docid": "1974697", "title": "", "text": "1, 1996 — • it is unclear whether and to what extent the former and present schemes apply. Essentially, then, what we must determine is whether the post-September 1, 1996 addendum to Texas’s mandatory supervision scheme, with its narrowly limited modicum of discretion, works to deprive all inmates of their constitutional expectancy of early release. We hold that it does not. Therefore, we need not determine which scheme applies here, as we conclude that Teague has a protected liberty interest under either version. Texas’s current mandatory supervision scheme is virtually identical to those at issue in Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex and Board of Pardons v. Allen and, as such, warrants the same result. In Green-holtz, the issue before the Supreme Court was whether a Nebraska parole statute created a protected liberty interest. Like the present Texas mandatory scheme of supervised release at issue here, the Nebraska statute was discretionary in part and predictive in part, specifying that the state parole board “shall order” the release of an eligible inmate, unless one of four specific designated reasons was found to be present. Relying on the structure and language of Nebraska’s parole statute, the Court held that it created a presumption that parole release would be granted and thus a constitutional expectancy of early release, entitling inmates to due process protection. Likewise, the Court in Allen determined that a Montana parole statute created a constitutional expectancy of early release. The Montana scheme provided that the state parole board “shall release” an eligible inmate on parole when it finds that there is a reasonable probability that the inmate may be released without detriment to himself or the community and that he is able and willing to fulfill the obligations of a law-abiding citizen. Comparing the Montana statute to the Nebraska statute in Greenholtz, the Court held that the Montana statute created the same pre sumption of parole release and thus a constitutional expectancy of early release, necessarily entitling inmates to due process protection. Juxtaposing the structure and language of Texas’ post-September 1, 1996 mandatory supervision scheme with" }, { "docid": "18685478", "title": "", "text": "existence of a liberty interest in parole release, the plaintiff fails to establish a violation of clearly established rights pursuant to Harlow. In Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Nebraska parole statute at issue provided in part: Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because: (a)There is a substantial risk that he will not conform to the conditions of parole; (b) His release would depreciate the seriousness of his crime or promote disrespect for law; (c) His release would have a substantially adverse effect on institutional discipline; or (d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date. Greenholtz, 442 U.S. at 11, 99 S.Ct. at 2106 (quoting Neb.Rev.Stat. § 83-1,114(1) (1976)) (emphasis added). In addition, the Nebraska statute provided “a list of 14 explicit factors and one catchall factor that the [Parole] Board is obligated to consider in reaching a decision.” Id. at 11 n. 5, 99 S.Ct. at 2106 n. 5 (citing Neb.Rev.Stat. §§ 83-1,114(2)(a)-(n) (1976)). According to the Greenholtz Court, the “unique structure and language” of the Nebraska provision, which featured the use of the word “shall” to create a presumption that parole release will be granted, produced “a legitimate expectation of release absent the requisite finding that one of the justifications for deferral exists.” Id. at 12, 99 S.Ct. at 2106. The Greenholtz Court emphasized, however, that the Nebraska provision at issue had a “unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.” Id. In Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987), the Supreme Court applied the principles established in Greenholtz in concluding that the Montana statute at issue gave" }, { "docid": "22821584", "title": "", "text": "mere existence of a parole system, the Supreme Court in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), concluded that a specific statute governing parole release determinations may give rise to a liberty interest entitled to constitutional protection if it is phrased in such a way as to provide the inmates with a legitimate expectation of release on parole. In Greenholtz, the Court emphasized that their decision rested on the “unique structure and language” of the applicable Nebraska statute and cautioned that whether any other statute created a liberty interest would have to be decided on a case-by-case basis. Greenholtz, supra, 442 U.S. at 12, 99 S.Ct. at 2106. In this case, the applicable federal statute, 18 U.S.C. § 4206, states that inmates who are eligible for parole shall be released if certain conditions are met. The statute provides: If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines: (1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; and (2) that release would not jeopardize the public welfare; subject to the provisions of subsections (b) and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a)(1), such prisoner shall be released. 18 U.S.C. § 4206(a) (emphasis added). The mandatory language of 18 U.S.C. § 4206(a) is emphasized by 18 U.S.C. § 4206(c), which states that the Commission may not deviate from the guidelines unless “good cause” exists to do so. Only slightly different from the federal parole statute is the statutory procedure described in Greenholtz, which expressly mandated that the Nebraska Board of Parole shall order the inmate’s release unless it decided that one of the four specified reasons for denial was applicable. It was this “unique structure and language” of the Nebraska statute which created the expectancy of release. Greenholtz, supra," }, { "docid": "2263581", "title": "", "text": "determines that: (1) there is a substantial risk that he will not conform to reasonable conditions of parole; or (2) his release at that time would deprecate the seriousness of his offense or promote disrespect for the law; or (3) his release would have a substantially adverse effect on institutional discipline. Ill.Rev.Stats. ch. 38, § 1003-3-5(c). The Code of Corrections further provides in Section 1003-3-5(f) that: The. Board shall render its decision within a reasonable time after hearing and shall state the basis therefor both in the records of the Board and in written notice to the person on whose application it has acted. In its decision, the Board shall set the person’s release date, or if it denies parole it shall provide for a rehearing not more than 12 months from the date of denial. (Emphasis added.) Part of the legislative history of the Code consists of the commentaries of the council which drafted the Code. The “Council Commentary” following Section 1003-3-5 reads in part as follows: The Board should state one or more of the reasons listed in subparagraph (c) as the basis for its decision denying parole as required by subparagraph (f). Additional reasons may also be stated. In this case parole was denied to the petitioner on December 19, 1974, the question of parole was continued to the December 1975 docket and “the Board gave the following in explanation of their decision,” all in strict accord with the Code of Corrections: It is the opinion of the Board that an early parole on this offense where police officers were wounded while doing their duty, would deprecate the seriousness of such an offense and would not deter others from committing such crimes. The Board recognizes your excellent institutional adjustment and well conceived parole plans and recommends that you continue in your excellent adjustment in the institution. The problem of this appeal is whether these reasons are sufficient to satisfy the minimum requirements of due process. Inasmuch as most of the authority upon which we must rely in seeking an answer is found in decisions interpreting federal law," }, { "docid": "6693401", "title": "", "text": "board or similar authority determines that the necessary prerequisites exist. See Board of Pardons v. Allen, 482 U.S. 369, 376, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). The Illinois parole release statute at issue in this case provides in relevant part: le) The Board shall not parole a person eligible for parole if it determines that: (1) there is a substantial risk that he will not conform to reasonable conditions of parole; or (2) his release at that time would deprecate the seriousness of his offense or promote disrespect for the law; or (3) his release would have a substantially adverse effect on institutional discipline. 730 ILCS 5/3-3-5(c) (1998) (formerly Ill.Rev. Stat. ch. 38, ¶ 1003 — 3—5(c)). Instead of directing the Board when to release an eligible inmate, Illinois has stated the rule in the negative; the Board shall not release the inmate if one of the above conditions exists. This court first considered Illinois’ parole release statute in Scott v. Illinois Parole and Pardon Bd., 669 F.2d 1185 (7th Cir.1982). Because the Illinois Supreme Court had not interpreted the parole statute prior to our decision in Scott, we looked to the Nebraska parole statute analyzed by the United States Supreme Court in Greenholtz. Noting certain similarities between the Nebraska statute and the Illinois statute, and looking to the rules promulgated by the Board for guidance, we held that Illinois’ parole statute “creates a presumption that an eligible inmate will be paroled unless one of the specified grounds for denial is found to exist.” Scott, 669 F.2d at 1190. In so holding, we concluded that Illinois’ parole release statute provides an inmate with a legitimate expectation of parole and, therefore, entitles him to “some measure of constitutional protection.” Id. We recognized, however, that “by stating its rule in the negative Illinois has left open the possibility that its statute can also be reasonably read as not creating an expectancy of release on parole.” Id. at 1189. In Hanrahan v. Williams, 174 Ill.2d 268, 220 Ill.Dec. 339, 673 N.E.2d 251 (Ill.1996), the Illinois Supreme Court considered the same parole statute" } ]

[ { "docid": "23130717", "title": "", "text": "we stated: [W]here plaintiffs rely on confidential personal sources but also on other facts, they need not name their sources as long as the latter facts provide an adequate basis for believing that the defendants’ statements were false. Moreover, even if personal sources must be identified, there is no requirement that they be named, provided they are described in the complaint with sufficient particularity to support the probability that a person in the position occupied by the source would possess the information alleged. Cal. Pub. Employees’ Ret. Sys. v. Chubb Corp., 394 F.3d 126, 146 (3d Cir.2004) (quoting Novak v. Kasaks, 216 F.3d 300, 314 (2d Cir.2000)). In other words, “a complaint can meet the pleading requirement [of the PSLRA] by providing sufficient documentary evidence and/or a sufficient description of the personal sources of the plaintiffs beliefs.” Id. at 147. We consider the “detail provided by the confidential sources, the sources’ basis of knowledge, the reliability of the sources, the corroborative nature of other facts alleged, including from other sources, the coherence and plausibility of the allegations, and similar indicia.” Id. Where, as here, plaintiffs lack documentary evidence such as internal memoranda, “reliance on confidential sources to supply the requisite particularity for their fraud claims ... assumes a heightened importance.” Id. at 148. We must determine whether this jurisprudence remains good law after Tellabs. As one court of appeals has observed, “Tel-labs did not [specifically] address ... how courts should go about evaluating allegations based on statements made by unidentified, confidential witnesses.” Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1239 (11th Cir.2008). Nonetheless, several of our sister circuits have considered where anonymous witnesses stand in the wake of the Supreme Court’s decision. An early Seventh Circuit opinion concluded that Tellabs required it to “discount allegations that the complaint [at bar] attributes to five ‘confidential witnesses.’ ” Higginbotham v. Baxter Int'l Inc., 495 F.3d 753, 756 (7th Cir.2007). “Tellabs requires judges to weigh the strength of plaintiffs’ favored inference in comparison to other possible inferences,” but in Higginbotham’s view, “anonymity frustrates that process” because it “conceals information that is essential" } ]

[ { "docid": "22411203", "title": "", "text": "scienter, we do not reach the questions of whether the complaint adequately pleads loss causation, see Daou, 411 F.3d at 1025, or whether certain statements relied upon by the complaint as false representations are forward-looking statements protected from liability under the PSLRA's \"safe harbor” provision, 15 U.S.C. § 78u-5. See Employers Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1131-33 (9th Cir.2004). . Some circuits have questioned whether Tel-labs requires a stricter standard for evaluating the sufficiency of securities fraud complaints relying on confidential witnesses. See Ind. Elec. Workers’ Pension Trust Fund IBEW v. Shaw Group, Inc., 537 F.3d 527, 535 (5th Cir.2008) (\"Following Tellabs, courts must discount allegations from confidential sources.”); Higginbotham v. Baxter Int’l, Inc., 495 F.3d 753, 756-57 (7th Cir.2007) (Tellabs requires courts to \"discount allegations that the complaint attributes to ... ‘confidential witnesses’ ” because \"it is hard to see how information from anonymous sources could be deemed 'compelling' or how we could take account of plausible opposing inferences” when the confidential witnesses could be lying or nonexistent). Because we conclude the complaint here fails the PSLRA's strong inference requirement even under our standard in Daou, we need not decide whether Tellabs requires us to further \"discount” the use of confidential witness statements. . Although the SAC does not reveal the exact job titles of CW2 and CW3, this is not fatal to the complaint. In Daou, we held that plaintiffs had pled facts sufficient to meet the PSLRA standard when plaintiffs relied on six confidential witnesses described in several cases simply by business department and general duties. See 411 F.3d at 1016. . We agree with Zueco that, under the Court's test in Tellabs, which explicitly rejected any standard which would \"transpose to the pleading stage the test that is used at the summary judgment and judgment-as-a-matter-of-law stages,” 127 S.Ct. at 2510 n. 5 (quotation marks omitted), the fact that a confidential witness reports hearsay does not automatically disqualify his statement from consideration in the scienter calculus. See Ca-bletron, 311 F.3d at 33 (noting that “the rigorous standards" }, { "docid": "12734977", "title": "", "text": "briefed and argued, Makor Issues & Rights, Ltd. v. Tellabs, Inc., 437 F.3d 588 (7th Cir.2006), supplied this circuit’s understanding of § 78u-4(b)(2). Shortly after argument, however, the Supreme Court granted certiorari in Tellabs, and we deferred action pending the Court’s decision. The Supreme Court’s opinion, Tellabs, Inc. v. Makor Issues & Rights, Ltd., — U.S. -, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007), establishes two propositions that govern this appeal. First, “[a] complaint will survive [a motion to dismiss] only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.” 127 S.Ct. at 2510, footnote omitted. Second, in applying this standard, “the court must take into account plausible opposing inferences.” 127 S.Ct. at 2502. One upshot of the approach that Tellabs announced is that we must discount allegations that the complaint attributes to five “confidential witnesses”—one ex-employee of the Brazilian subsidiary, two ex-employees of Baxter’s headquar ters, and two consultants. It is hard to see how information from anonymous sources could be deemed “compelling” or how we could take account of plausible opposing inferences. Perhaps these confidential sources have axes to grind. Perhaps they are lying. Perhaps they don’t even exist. At oral argument, we asked when the identity of these five persons would be revealed and how their stories could be tested. The answer we received was that the sources’ identity would never be revealed, which means that their stories can’t be checked. Yet Tellabs requires judges to weigh the strength of plaintiffs’ favored inference in comparison to other possible inferences; anonymity frustrates that process. Not that anonymity is possible in the long run. There is no “informer’s privilege” in civil litigation. Defendants are entitled to learn in discovery who has relevant evidence, and to obtain that evidence. Indeed, plaintiffs are obliged by Fed. R.Civ.P. 26(a)(1)(A) to provide defendants with the names and addresses of all persons “likely to have discoverable information that the disclosing party may use to support its claims or defenses”. Concealing names at the complaint stage thus" }, { "docid": "5173902", "title": "", "text": "company’s close monitoring of the portfolio. . In addition to their briefs on the motions here, the parties have submitted letters that discuss in detail the applicable standard for pleading scienter following Teamsters, Dynex II and more recent precedents. . Plaintiffs may rely on confidential sources to satisfy the pleading requirements of the PSLRA and Rule 9(b). See Novak, 216 F.3d at 314. In such a situation, the confidential sources must be \"described in the complaint with sufficient particularity to support the probability that a person in the position occupied by the source would possess the information alleged.” Id. Plaintiffs here have met this burden for each of the confidential witnesses mentioned in the CAC. We note that, following the Tellabs decision, the Seventh Circuit has held that allegations from confidential witnesses must be discounted, because ”[i]t is hard to see how information from anonymous sources could be deemed 'compelling' or how we could take account of plausible opposing inferences. Perhaps these confidential sources have axes to grind. Perhaps they are lying. Perhaps they don’t even exist.” Higginbotham v. Baxter Int’l, Inc., 495 F.3d 753, 757 (7th Cir.2007). The Second Circuit has not yet addressed the issue under the Tellabs standard, and, absent its guidance to the contrary, its precedent allowing the use of confidential sources to demonstrate scienter will be followed here. Other courts in this District have proceeded similarly. See, e.g., In re PXRE, 600 F.Supp.2d at 526 n. 18; In re NovaGold Resources Inc. Sec. Litig., 629 F.Supp.2d 272, 298 n. 14 (S.D.N.Y.2009). . The CAC also alleges facts about Ambac's underwriting practices that directly contradict the affirmative statements of Ambac's public filings. For example, plaintiffs allege that Ambac officers were relying on counter-parties and rating agencies in the underwriting process, and were failing to re-rate the collateral underlying the CDOs Ambac guaranteed. CAC ¶¶ 91-92, 103. These facts, which the Court must take as true for purposes of analyzing the present motions, render false the statements in Ambac's filings that the company did not rely on counterparties and always re-rated the underlying collateral of CDOs as" }, { "docid": "15870678", "title": "", "text": "but maintain that Defendants were reckless in (a) creating Intelligroup’s internal control environment in the fashion unable to withstand the massive problems associated with adoption of the new automated financial system, and (b) not maintaining sufficient personnel at Intelligroup's United States facilities to prevent the consequences defined by UW-5 as \"disastrous.” However, if so, these allegations have no relevance to either the errors that infested Intelligroup’s Statements years before the events of summer 2004 or Defendants' state of mind that existed at the time when the Statements were publicized. . Moreover, executive incentives based on earnings do not provide grounds for inference of scienter, see, e.g., Tuchman, 14 F.3d at 1068, the Court also notes that, if Intelligroup had such an incentive system, the fact that Intelligroup's net income was understated more often than overstated during the periods reflected in Plaintiffs’ Table, see Compl. at 11, indicates that Defendants’ alleged fraud could cause (or actually caused) pecuniary loss to Defendants. . The Court of Appeals for the Seventh Circuit recently suggested that, under the Supreme Court’s holding in Tellabs, no statement allegedly made to a securities plaintiffs by undisclosed witnesses could be properly considered for the purpose of establishing defendant’s scienter. The Seventh Circuit clarified as follows: The Supreme Court’s opinion, Tellabs, ..., establishes two propositions.... First, \"[a] complaint will survive [a motion to dismiss] only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.”... Second, in applying this standard, \"the court must take into account plausible opposing inferences.” [The] upshot of the approach that Tellabs announced is that [the court] must discount allegations that the complaint attributes to ... \"confidential witnesses” [since it] is hard to see how information from anonymous sources could be deemed \"compelling” or how [the court] could take account of plausible opposing inferences [considering one-sided statement of witnesses proffered by an interested party]. Perhaps these confidential sources have axes to grind. Perhaps they are lying. Perhaps they don't even exist. Higginbotham, 495 F.3d at 756-57. . Needless" }, { "docid": "23130719", "title": "", "text": "to th[is] sort of comparative evaluation.” Id. at 757. The Higginbotham court nonetheless acknowledged that anonymous sources can sometimes “corroborate or disambiguate” other evidence, and that the precise weight to be given to confidential witness allegations can be determined only in the context of all the other allegations presented in a specific case. Id. For these reasons, the court concluded that information alleged by confidential sources “must be ‘discounted’ rather than ignored.” Id. But it emphasized that “[u]sually that discount will be steep.” Id. Other courts, however, have qualified Higginbotham’s strong skepticism of confidential sources. The Seventh Circuit itself distinguished Higginbotham in Tellabs II. As the latter case observed, not only were the sources in the Higginbotham complaint anonymous, but they were also “described merely as three ex-employees of [the defendant company] and two consultants.” Tellabs II, 513 F.3d at 712. The confidential sources listed in the Tellabs II complaint, on the other hand, “are numerous and consist of persons who from the description of their jobs were in a position to know at first hand the facts to which they are prepared to testify.... The information that the confidential informants are reported to have obtained is set forth in convincing detail, with some of the information, moreover, corroborated by multiple sources.” Id. The Tellabs II court conceded that, all else being equal, a complaint with named sources “would be better” than one with confidential witnesses, but “the absence of proper names does not invalidate the drawing of a strong inference from informants’ assertions.” Id. Tellabs II apparently circumscribes Higginbotham’s broad pronouncement that confidential witness allegations will “usually” be steeply discounted, clarifying that the weight accorded to anonymous sources will depend in large part on the level of detail with which they are described. In Tellabs II, then, the Seventh Circuit appears to have reached essentially the same conclusion we set forth earlier in Chubb. Tellabs II cites that case approvingly. See id. Other circuits have staked out similar positions. See, e.g., Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 995 (9th Cir.2009) (evaluating “whether a complaint has provided" }, { "docid": "5173901", "title": "", "text": "1128). . We note that if a plaintiff fails to allege adequate motive, as in this case, the strength of the circumstantial allegations of conscious misbehavior or recklessness must be correspondingly greater. See Kalnit, 264 F.3d at 142; see also Beck v. Mfrs. Hanover Trust Co., 820 F.2d 46, 50 (2d Cir.1987) (\"Where motive is not apparent, it is still possible to plead scienter by identifying circumstances indicating conscious behavior by the defendant, though the strength of the circumstantial allegations must be correspondingly greater.” (internal citations omitted)), abrogated on other grounds by United States v. Indelicato, 865 F.2d 1370 (2d Cir.1989). . Conscious misbehavior “encompasses deliberate illegal behavior, such as securities trading by insiders privy to undisclosed and material information, or knowing sale of a company's stock at an unwarranted discount.” Novak, 216 F.3d at 308 (internal citations omitted). . As an alternative basis for pleading recklessness, plaintiffs allege that the Exchange Act Officers failed to monitor the performance of Ambac’s insured portfolio, while under a duty to do so and while repeatedly touting the company’s close monitoring of the portfolio. . In addition to their briefs on the motions here, the parties have submitted letters that discuss in detail the applicable standard for pleading scienter following Teamsters, Dynex II and more recent precedents. . Plaintiffs may rely on confidential sources to satisfy the pleading requirements of the PSLRA and Rule 9(b). See Novak, 216 F.3d at 314. In such a situation, the confidential sources must be \"described in the complaint with sufficient particularity to support the probability that a person in the position occupied by the source would possess the information alleged.” Id. Plaintiffs here have met this burden for each of the confidential witnesses mentioned in the CAC. We note that, following the Tellabs decision, the Seventh Circuit has held that allegations from confidential witnesses must be discounted, because ”[i]t is hard to see how information from anonymous sources could be deemed 'compelling' or how we could take account of plausible opposing inferences. Perhaps these confidential sources have axes to grind. Perhaps they are lying. Perhaps they don’t" }, { "docid": "8291611", "title": "", "text": "refer to PXRE's estimate of net losses. Although Plaintiff defines net loss in the PSAC, see supra note 7, Plaintiff fails to define gross loss. . On November 9, 2005, PXRE issued a fourth press release (the \"November 9 re lease”), indicating that its preliminary estimate of net losses arising from Hurricane Wilma was between $75 million and $90 million, and that PXRE calculated this estimate based in part on industry-wide loss estimates of $14.5 billion for Hurricane Wilma. (See PSAC ¶ 72.) PXRE also indicated in the November 9 release that it incurred an estimated $425 million to $440 million in total losses from all three hurricanes. (Id.) Plaintiff does not allege that the statements contained in the November 9 release are false and misleading, as he does for the September 11 release, the September 19 release, the September 28 release, the October 17 Proxy Statement, the October 27 release, and the Form 10-Q. (See id. ¶¶ 51, 57, 61, 67, 71.) . This Complaint was docketed as No. 06 Civ. 3410. . The Complaint in No. 06 Civ. 3440 was filed on May 4, 2006, the Complaint in No. 06 Civ. 3544 was filed on May 10, 2006, and the Complaint in No. 06 Civ. 4638 was filed on June 16, 2006. . The Court recognizes that, in light of the Supreme Court’s ruling in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007), the Seventh Circuit has held that allegations from confidential witnesses must be discounted, because \"[i]t is hard to see how information from anonymous sources could be deemed 'compelling' or how we could take account of plausible opposing inferences. Perhaps these confidential sources have axes to grind. Perhaps they are lying. Perhaps they don't even exist.” Higginbotham v. Baxter Int’l, Inc., 495 F.3d 753, 757 (7th Cir.2007). The Court declines to follow this approach absent guidance from the Second Circuit, and will continue to consider allegations based on information provided by confidential sources without discounting those allegations due solely to the anonymity of the information’s source." }, { "docid": "22411202", "title": "", "text": "with prejudice, since it was clear that the plaintiffs had made their best case and had been found wanting. See Metzler Investment, 540 F.3d at 1072 (upholding a dismissal with prejudice where, inter alia, the deficiencies at issue “persisted in every prior iteration of the[complaint]”). IV The allegations of scienter in the SAC, though voluminous, are not pled with the particularity required to survive a Federal Rule of Civil Procedure 12(b)(6) dismissal under the standards enumerated in Federal Rule of Civil Procedure 9(b) and the PSLRA. Instead, the plaintiffs in this case assume that compiling a large quantity of otherwise questionable allegations will create a strong inference of scienter through the complaint’s emergent properties. Although Tellabs instructs us to view such compilations holistically, even such a comprehensive perspective of Zucco’s complaint cannot transform a series of inadequate allegations into a viable inference of scienter. We therefore affirm the district court’s dismissal of the Second Amended Complaint with prejudice. AFFIRMED. . Because we find that the district court correctly dismissed Zucco's claims for failure to plead scienter, we do not reach the questions of whether the complaint adequately pleads loss causation, see Daou, 411 F.3d at 1025, or whether certain statements relied upon by the complaint as false representations are forward-looking statements protected from liability under the PSLRA's \"safe harbor” provision, 15 U.S.C. § 78u-5. See Employers Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1131-33 (9th Cir.2004). . Some circuits have questioned whether Tel-labs requires a stricter standard for evaluating the sufficiency of securities fraud complaints relying on confidential witnesses. See Ind. Elec. Workers’ Pension Trust Fund IBEW v. Shaw Group, Inc., 537 F.3d 527, 535 (5th Cir.2008) (\"Following Tellabs, courts must discount allegations from confidential sources.”); Higginbotham v. Baxter Int’l, Inc., 495 F.3d 753, 756-57 (7th Cir.2007) (Tellabs requires courts to \"discount allegations that the complaint attributes to ... ‘confidential witnesses’ ” because \"it is hard to see how information from anonymous sources could be deemed 'compelling' or how we could take account of plausible opposing inferences” when the confidential witnesses could" }, { "docid": "4220565", "title": "", "text": "and, on August 9, 2007, HomeBanc filed a voluntary petition for relief under Chapter 11 of the U.S. Bankruptcy Code in the Bankruptcy Court for the District of Delaware. After consolidation occurred with another related action, on August 5, 2009, Plaintiff filed a consolidated amended complaint against Defendants. The consolidated complaint asserts two claims: (1) a claim against Defendants for violations of the Securities and Exchange Act of 1934 (“the Exchange Act”) and Rule 10B-5 promulgated thereunder; and (2) a controlling person claim pursuant to section 20(a) of the Exchange Act. E. Confidential Witnesses In an attempt to buttress the allegations that are made, throughout the complaint Plaintiff relies upon the statements and observations of twelve confidential witnesses. According to Plaintiff, these confidential witnesses are all former employees of HomeBane. Citing several cases that point out the dangers in relying upon confidential witnesses, Defendants argue that any allegations that are based upon statements made by such witnesses should be discounted. See Higginbotham v. Baxter Int’l, Inc., 495 F.3d 753, 757 (7th Cir.2007) (“It is hard to see how information from anonymous sources could be deemed ‘compelling’ or how we could take account of plausible opposing inferences. Perhaps these confidential sources have axes to grind. Perhaps they are lying. Perhaps they don’t even exist.”); Ind. Elec. Workers’ Pension Trust Fund IBEW v. Shaw Group, Inc., 537 F.3d 527, 535 (5th Cir.2008) (because confidential sources afford no basis for drawing the plausible competing inferences, courts should discount allegations from confidential sources). Plaintiff counters that the confidential witnesses’ allegations should be given weight and should not be discounted simply because the names of the witnesses have been withheld. The Eleventh Circuit addressed this issue in Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1239 (11th Cir.2008). There, the court held that “the weight to be afforded to allegations based on statements proffered by a confidential source depends on the particularity of the allegations made in each case, and confidentiality is one factor that courts may consider. Confidentiality, however, should not eviscerate the weight given if the complaint otherwise describes the foundation or basis" }, { "docid": "12734978", "title": "", "text": "from anonymous sources could be deemed “compelling” or how we could take account of plausible opposing inferences. Perhaps these confidential sources have axes to grind. Perhaps they are lying. Perhaps they don’t even exist. At oral argument, we asked when the identity of these five persons would be revealed and how their stories could be tested. The answer we received was that the sources’ identity would never be revealed, which means that their stories can’t be checked. Yet Tellabs requires judges to weigh the strength of plaintiffs’ favored inference in comparison to other possible inferences; anonymity frustrates that process. Not that anonymity is possible in the long run. There is no “informer’s privilege” in civil litigation. Defendants are entitled to learn in discovery who has relevant evidence, and to obtain that evidence. Indeed, plaintiffs are obliged by Fed. R.Civ.P. 26(a)(1)(A) to provide defendants with the names and addresses of all persons “likely to have discoverable information that the disclosing party may use to support its claims or defenses”. Concealing names at the complaint stage thus does not protect informers from disclosure (and the risk of retaliation); it does nothing but obstruct the judiciary’s ability to implement the PSLRA. This does not mean that plaintiffs must reveal all of their sources, as one circuit has required. See In re Silicon Graphics Inc. Securities Litigation, 183 F.3d 970, 985 (9th Cir.1999). A complaint is not a discovery device. Our point, rather, is that anonymity conceals information that is essential to the sort of comparative evaluation required by Tellabs. To determine whether a “strong” inference of scienter has been established, the judiciary must evaluate what the complaint reveals and disregard what it conceals. Decisions such as In re Cabletron Systems, Inc., 311 F.3d 11, 24 n. 6, 28-31 (1st Cir.2002), which countenance the use of confidential sources to satisfy the PSLRA, analogize to unnamed informants in affidavits for search warrants. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). That analogy shows the problem. A complaint passes muster under Tellabs “only if a reasonable person would deem the" }, { "docid": "23130721", "title": "", "text": "sufficient detail about a confidential witness’ position within the defendant company to provide a basis for attributing the facts reported by that witness to the witness’ personal knowledge”); Mizzaro, 544 F.3d at 1240 (Although there are “reasons why courts may be skeptical of confidential sources cited in securities fraud complaints ... [,] [confidentiality ... should not eviscerate the weight given [to these sources] if the complaint otherwise fully describes the foundation or basis of the confidential witness’s knowledge, including the position(s) held, the proximity to the offending conduct, and the relevant time frame.”); see also Ley v. Visteon Corp., 543 F.3d 801, 811 (6th Cir.2008) (endorsing Higginbotham’s steep discount where plaintiffs not only withheld the names of employees who knew of defendant’s “alleged accounting improprieties,” but also failed to allege “what, when, where, and how” the employees knew of that information). In our view, the case law interpreting the Supreme Court’s Tellabs opinion confirms the position we took in Chubb. The PSLRA imposes a particularity requirement on all allegations, whether they are offered in support of a statement’s falsity or of a defendant’s scienter. 15 U.S.C. § 78u — 4(b)(1), (b)(2). In the case of confidential witness allegations, we apply that requirement by evaluating the “detail provided by the confidential sources, the sources’ basis of knowledge, the reliability of the sources, the corroborative nature of other facts alleged, including from other sources, the coherence and plausibility of the allegations, and similar indicia.” Chubb, 394 F.3d at 147. If anonymous source allegations are found wanting with respect to these criteria, then we must discount them steeply. This is consistent with Tellabs’s teaching that “omissions and ambiguities count against inferring scienter” under the PSLRA’s particularity requirements. Tellabs, 127 S.Ct. at 2511. If, on the other hand, a complaint’s confidential witness allegations are adequately particularized, we will not dismiss them simply on account of their anonymity. In short, Chubb remains good law. Referring to the Chubb factors, the District Court here concluded that “[plaintiffs have appropriately described the positions formerly held by each of [the confidential] sources as well as the basis of" }, { "docid": "13779097", "title": "", "text": "failure to write off impaired goodwill. (Plaintiffs’ Consolidated Amended Complaint (“Compl.”) 98.) All of these allegations are tied to the statements in Shaw’s periodic financial reports during the class period, and voluminous citations to accounting rules are included. No direct allegations of fraudulent conduct or intent on the part of Bern-hard or Belk are alleged. Instead, plaintiffs rely, as they are permitted to do, on circumstantial allegations. They assert that the individual defendants must have known of the irregularities because of their executive positions in the company, and they emphasize Bernhard’s “hands-on management style,” and the magnitude and extent of the accounting standards violations. None of these assertions withstands analysis. First, this court’s caselaw makes clear that “pleading[s] of scienter may not rest on the inference that defendants must have been aware of the misstatement based on their positions with the company.” Abrams, 292 F.3d at 432. Second, Bernhard’s management style, coupled with his alleged boast that “there is nothing in this company that I don’t know,” are insufficient to support a strong inference of scienter. See Goldstein v. MCI WorldCom, 340 F.3d 238, 251 (5th Cir.2003). Such statements lack specificity about what Bernhard may have known or, for that matter, was reckless not to have known, about the details of the company’s accounting practices. That these allegations derive from confidential sources further detracts from their weight in the scienter analysis. Following Tellabs, courts must discount allegations from confidential sources. Higginbotham v. Baxter Int'l Inc., 495 F.3d 753, 756-57 (7th Cir.2007). Such sources afford no basis for drawing the plausible competing inferences required by Tellabs. Id. at 757 (“Tellabs requires judges to weigh the strength of plaintiffs’ favored inference in comparison to other possible inferences; anonymity frustrates that process.”). At the very least, such sources must be described “with sufficient particularity to support the probability that a person in the position occupied by the source ... would possess the information pleaded .... ” ABC Arbitrage Plaintiffs Group v. Tchuruk, 291 F.3d 336, 353 (5th Cir.2002); see also Central Laborers’, 497 F.3d at 552 (same). The final assertion, that Bern-hard, Belk" }, { "docid": "13779098", "title": "", "text": "scienter. See Goldstein v. MCI WorldCom, 340 F.3d 238, 251 (5th Cir.2003). Such statements lack specificity about what Bernhard may have known or, for that matter, was reckless not to have known, about the details of the company’s accounting practices. That these allegations derive from confidential sources further detracts from their weight in the scienter analysis. Following Tellabs, courts must discount allegations from confidential sources. Higginbotham v. Baxter Int'l Inc., 495 F.3d 753, 756-57 (7th Cir.2007). Such sources afford no basis for drawing the plausible competing inferences required by Tellabs. Id. at 757 (“Tellabs requires judges to weigh the strength of plaintiffs’ favored inference in comparison to other possible inferences; anonymity frustrates that process.”). At the very least, such sources must be described “with sufficient particularity to support the probability that a person in the position occupied by the source ... would possess the information pleaded .... ” ABC Arbitrage Plaintiffs Group v. Tchuruk, 291 F.3d 336, 353 (5th Cir.2002); see also Central Laborers’, 497 F.3d at 552 (same). The final assertion, that Bern-hard, Belk and through them, Shaw must have known of the alleged accounting irregularities because they are so massive, disproves itself. This case is quite unlike most securities fraud cases, which are precipitated when the company announces such revelations as a restatement in earnings due to accounting mistakes or the discovery and correction of material errors or misdeeds in a subsidiary. Here, there was no mea culpa from the company in the form of acknowledged wrongdoing or restated financial reports, nor was there any auditor qualification to those aspects of the reports made the basis of this complaint, nor any publicly expressed reservations by the auditors to the financials. There is no single event or fact that the executives can be alleged to have known and concealed from the public. In Central Laborers, by contrast, the company disclosed material weaknesses in its internal controls that eventually required restatement of two and a half fiscal years of financial results. 497 F.3d at 549. This court concluded that the defendant’s “public statements and subsequent restatement due to GAAP violations" }, { "docid": "4220566", "title": "", "text": "to see how information from anonymous sources could be deemed ‘compelling’ or how we could take account of plausible opposing inferences. Perhaps these confidential sources have axes to grind. Perhaps they are lying. Perhaps they don’t even exist.”); Ind. Elec. Workers’ Pension Trust Fund IBEW v. Shaw Group, Inc., 537 F.3d 527, 535 (5th Cir.2008) (because confidential sources afford no basis for drawing the plausible competing inferences, courts should discount allegations from confidential sources). Plaintiff counters that the confidential witnesses’ allegations should be given weight and should not be discounted simply because the names of the witnesses have been withheld. The Eleventh Circuit addressed this issue in Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1239 (11th Cir.2008). There, the court held that “the weight to be afforded to allegations based on statements proffered by a confidential source depends on the particularity of the allegations made in each case, and confidentiality is one factor that courts may consider. Confidentiality, however, should not eviscerate the weight given if the complaint otherwise describes the foundation or basis of the confidential witness’s knowledge, including the position(s) held, the proximity to the offending conduct, and the relevant time frame.” 544 F.3d at 1240. Here, Plaintiff has given an adequate foundation for each of the confidential witnesses: he has identified the positions held by each of the witnesses, the time periods in which they were employed, and the basis for their knowledge. Therefore, the Court will not wholly disregard the statements and observations that they make in the complaint and upon which Plaintiff relies. However, the Court does observe a key problem with Plaintiffs heavy reliance upon these confidential witnesses. Plaintiff has largely failed to plead any facts demonstrating that either Defendant supported or endorsed the confidential witnesses’ assessments of HomeBane. For example, as support for its heading, “Defendants knew and/or were severely reckless in disregarding that HomeBane had massive and systematic problems at least as early as 2005,” Plaintiff alleges that “CW8” stated that “by the end of 2006 and the beginning of 2007 defaults were completely out of control.’ ” But Plaintiff fails" }, { "docid": "20601389", "title": "", "text": "could be deemed 'compelling' or how we could take account of plausible opposing inferences. Perhaps these confidential sources have axes to grind. Perhaps they are lying. Perhaps they don't even exist.” Higginbotham v. Baxter Int’l, Inc., 495 F.3d 753, 757 (7th Cir.2007). The Second Circuit has not yet addressed the issue, and, absent its guidance to the contrary, its precedent allowing the use of confidential sources to demonstrate scienter will be followed here. . The plaintiff asserts six different misleading aspects of the allegedly false statements. The six aspects have been consolidated into two categories here for ease of analysis. . While defendants point out that many of these statements related to costs are forward-looking, because the consolidated complaint alleges that NovaGold had actual knowledge that the statements were false when made, the PSLRA safe harbor and bespeaks caution doctrine would not apply. 15 U.S.C. § 77z-2(c)(1)(B) (PSLRA safe harbor); P. Stolz, 355 F.3d at 97 (bespeaks caution doctrine). . The alleged false statements appeared in the sections of the press releases, conference calls, quarterly reports, and the Registration Statement quoted in the Background section above. . On the October 17, 2007 Conference Call, MacDonald stated that Teck's initial contribution to the joint venture \"covers 100% of the cash payments for Galore Creek from August 1, 2007 to well into 2008.” . Defendants attempt to analogize to drug testing, where the Second Circuit has ruled that a drug company did not need to report isolated deaths from its drug until they occurred in statistically significant numbers, threatening the product’s commercial viability. In re Carter-Wallace, Inc. Securities Litigation, 150 F.3d 153, 157 (2d Cir.1998). Here, the plaintiff has adequately alleged a concealment of significant financial information. . While the PSLRA safe harbor suggests that a duty to update would not apply to some forecasts, the safe harbor is not an obstacle to imposing the duty to update here, as Nova-Gold continued to refer to the Hatch Study despite mounting evidence that the Hatch Study was materially obsolete. . Stating that the Project would be commercially viable is not the same as" }, { "docid": "15870679", "title": "", "text": "Court’s holding in Tellabs, no statement allegedly made to a securities plaintiffs by undisclosed witnesses could be properly considered for the purpose of establishing defendant’s scienter. The Seventh Circuit clarified as follows: The Supreme Court’s opinion, Tellabs, ..., establishes two propositions.... First, \"[a] complaint will survive [a motion to dismiss] only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.”... Second, in applying this standard, \"the court must take into account plausible opposing inferences.” [The] upshot of the approach that Tellabs announced is that [the court] must discount allegations that the complaint attributes to ... \"confidential witnesses” [since it] is hard to see how information from anonymous sources could be deemed \"compelling” or how [the court] could take account of plausible opposing inferences [considering one-sided statement of witnesses proffered by an interested party]. Perhaps these confidential sources have axes to grind. Perhaps they are lying. Perhaps they don't even exist. Higginbotham, 495 F.3d at 756-57. . Needless to say, any understatements of Intelligroup's loss or overstatements of assets in the year 2000 are: (a) irrelevant, in view of the fact that the Class Period started to run on May 1, 2001, see Compl. at 1, and (b) a factual impossibility since Plaintiffs themselves assert that, at least until \"the end of fiscal year 2000,” Intelligroup did not know about non-collectability of the SeraNova note. . Although not being presented with Plaintiffs allegations specifying when or how Defendants initially advised the market about the SeraNova note being collectable, the Court presumes, hypothetically, that Intelli-group expressly offered — or expressly repeated — such assurances at some point during the Class Period, hence triggering the threshold duty to enter a corrective statement if the situation changed as to the collectability. See Oran, 226 F.3d at 286-87. . The Court considers Intelligroup’s 10-K incorporated in the Complaint by reference and, thus, takes judicial notice of the entire content of this document, as filed by Intelli-group with the SEC. See TMJ Implants, Inc. v. Aetna, Inc., 498" }, { "docid": "20601388", "title": "", "text": "immaterial, given that the uncertainty of the Project’s costs was disclosed. . Canadian securities regulations indicate that a feasibility study is designated as “final,” in contrast with a “preliminary” feasibility study, to denote that it may serve as the basis for a final decision by a financial institution regarding funding, because it is \"compre hensive” and investigates the relevant issues \"in sufficient detail.” National Instrument 43-101, Standards of Disclosure for Mineral Projects, B.C. Reg. 381/2005, s. 1.1 (Can.). Again, no indication exists that a \"final” feasibility study may not later be revised as conditions change. . The allegations of control person violations brought pursuant to Section 15 of the Securities Act, 15 U.S.C. § 77o, must be dismissed as well. Establishing control person liability requires a plaintiff to make a prima facie showing of a primary violation by the controlled person. See ATSI, 493 F.3d at 108. .Following the Tellabs decision, the Seventh Circuit has held that allegations from confidential witnesses must be discounted, because \"[i]t is hard to see how information from anonymous sources could be deemed 'compelling' or how we could take account of plausible opposing inferences. Perhaps these confidential sources have axes to grind. Perhaps they are lying. Perhaps they don't even exist.” Higginbotham v. Baxter Int’l, Inc., 495 F.3d 753, 757 (7th Cir.2007). The Second Circuit has not yet addressed the issue, and, absent its guidance to the contrary, its precedent allowing the use of confidential sources to demonstrate scienter will be followed here. . The plaintiff asserts six different misleading aspects of the allegedly false statements. The six aspects have been consolidated into two categories here for ease of analysis. . While defendants point out that many of these statements related to costs are forward-looking, because the consolidated complaint alleges that NovaGold had actual knowledge that the statements were false when made, the PSLRA safe harbor and bespeaks caution doctrine would not apply. 15 U.S.C. § 77z-2(c)(1)(B) (PSLRA safe harbor); P. Stolz, 355 F.3d at 97 (bespeaks caution doctrine). . The alleged false statements appeared in the sections of the press releases, conference calls, quarterly" }, { "docid": "8291612", "title": "", "text": "Complaint in No. 06 Civ. 3440 was filed on May 4, 2006, the Complaint in No. 06 Civ. 3544 was filed on May 10, 2006, and the Complaint in No. 06 Civ. 4638 was filed on June 16, 2006. . The Court recognizes that, in light of the Supreme Court’s ruling in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007), the Seventh Circuit has held that allegations from confidential witnesses must be discounted, because \"[i]t is hard to see how information from anonymous sources could be deemed 'compelling' or how we could take account of plausible opposing inferences. Perhaps these confidential sources have axes to grind. Perhaps they are lying. Perhaps they don't even exist.” Higginbotham v. Baxter Int’l, Inc., 495 F.3d 753, 757 (7th Cir.2007). The Court declines to follow this approach absent guidance from the Second Circuit, and will continue to consider allegations based on information provided by confidential sources without discounting those allegations due solely to the anonymity of the information’s source. Other courts in this District have proceeded similarly. See, e.g., City of Brockton Ret. Sys. v. Shaw Group Inc., 540 F.Supp.2d 464, 474 (S.D.N.Y.2008) (declining to adopt the Higginbotham standard); In re Xethanol Corp. Sec. Litig., No. 06 Civ. 10234(HB), 2007 WL 2572088, at *3 n. 3 (S.D.N.Y. Sept. 7, 2007) (noting that \"anonymous sources do not have to be identified,” and finding that the provided descriptions of the confidential sources were sufficient to allow the court “to infer that the witnesses are likely to possess the information contained in their statements”). . Although the text of the Exchange Act does not explicitly provide for a private cause of action for section 10(b) violations, \"[i]t is now established that a private right of action is implied under § 10(b).” Superintendent of Ins. v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n. 9, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971). . While at least one court in this District has noted that \"[examining the allegations separately under the rubrics of 'motive and opportunity' and" }, { "docid": "23130720", "title": "", "text": "hand the facts to which they are prepared to testify.... The information that the confidential informants are reported to have obtained is set forth in convincing detail, with some of the information, moreover, corroborated by multiple sources.” Id. The Tellabs II court conceded that, all else being equal, a complaint with named sources “would be better” than one with confidential witnesses, but “the absence of proper names does not invalidate the drawing of a strong inference from informants’ assertions.” Id. Tellabs II apparently circumscribes Higginbotham’s broad pronouncement that confidential witness allegations will “usually” be steeply discounted, clarifying that the weight accorded to anonymous sources will depend in large part on the level of detail with which they are described. In Tellabs II, then, the Seventh Circuit appears to have reached essentially the same conclusion we set forth earlier in Chubb. Tellabs II cites that case approvingly. See id. Other circuits have staked out similar positions. See, e.g., Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 995 (9th Cir.2009) (evaluating “whether a complaint has provided sufficient detail about a confidential witness’ position within the defendant company to provide a basis for attributing the facts reported by that witness to the witness’ personal knowledge”); Mizzaro, 544 F.3d at 1240 (Although there are “reasons why courts may be skeptical of confidential sources cited in securities fraud complaints ... [,] [confidentiality ... should not eviscerate the weight given [to these sources] if the complaint otherwise fully describes the foundation or basis of the confidential witness’s knowledge, including the position(s) held, the proximity to the offending conduct, and the relevant time frame.”); see also Ley v. Visteon Corp., 543 F.3d 801, 811 (6th Cir.2008) (endorsing Higginbotham’s steep discount where plaintiffs not only withheld the names of employees who knew of defendant’s “alleged accounting improprieties,” but also failed to allege “what, when, where, and how” the employees knew of that information). In our view, the case law interpreting the Supreme Court’s Tellabs opinion confirms the position we took in Chubb. The PSLRA imposes a particularity requirement on all allegations, whether they are offered in support" }, { "docid": "12734979", "title": "", "text": "does not protect informers from disclosure (and the risk of retaliation); it does nothing but obstruct the judiciary’s ability to implement the PSLRA. This does not mean that plaintiffs must reveal all of their sources, as one circuit has required. See In re Silicon Graphics Inc. Securities Litigation, 183 F.3d 970, 985 (9th Cir.1999). A complaint is not a discovery device. Our point, rather, is that anonymity conceals information that is essential to the sort of comparative evaluation required by Tellabs. To determine whether a “strong” inference of scienter has been established, the judiciary must evaluate what the complaint reveals and disregard what it conceals. Decisions such as In re Cabletron Systems, Inc., 311 F.3d 11, 24 n. 6, 28-31 (1st Cir.2002), which countenance the use of confidential sources to satisfy the PSLRA, analogize to unnamed informants in affidavits for search warrants. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). That analogy shows the problem. A complaint passes muster under Tellabs “only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.” That is a higher standard than “probable cause,” which (the court stressed in Gates) does not entail a more-likely-than-not threshold. No decision of which we are aware concludes that anonymous accusers can demonstrate that scienter is “at least as [likely] as any opposing inference one could draw from the facts alleged.” It is possible to imagine situations in which statements by anonymous sources may corroborate or disambiguate evidence from disclosed sources. Informants sometimes play this role in applications for search warrants. Because it is impossible to anticipate all combinations of information that may be presented in the future, and because Tellabs instructs courts to evaluate the allegations in their entirety, we said above that allegations from “confidential witnesses” must be “discounted” rather than ignored. Usually that discount will be steep. It is unnecessary to say more today. Plaintiffs do not proffer concrete evidence that anyone at Baxter’s headquarters in the United States knew of the" } ]

[ { "docid": "1882666", "title": "", "text": "“operator” is \"any person, partnership, or corporation engaged in coal mining.” 30 U.S.C. § 1291(13). A \"permittee” is the \"person holding a permit” under the SMCRA. Id. at § 1291(18). West Virginia similarly defines “operator” and \"permittee” and holds both responsible for the costs of reclamation. See W.Va.Code § 22-3-3(o) & (r); C.S.R. § 38-2-12.4(e). . All revisions were approved by the West Virginia Legislature in a process open to the public. See W.Va.Code § 29A-3-1 ] (Submission of legislative rules to the legislative rule-making review committee) and 29A-3-12 (Submission of legislative rules to Legislature). . The Special Reclamation Fund is a component of West Virginia’s “alternative” two-tiered bonding system. The first tier requires permittees to post a site-specific reclamation bond of between $1,000 and $5,000 per acre of proposed surface disturbance. W.Va.Code § 22-3-11(a); C.S.R. § 38-2-11.2. Because the amount of this bond is artificially capped at $5,000 per acre, it is often inadequate to cover the full costs of reclamation. Accordingly, West Virginia created the second tier, a bond pool known as the Special Reclamation Fund, which supplements the site-specific reclamation performance bonds furnished by permittees. The Special Reclamation Fund is funded hy a fee of $.03 per ton of coal mined assessed against \"every person conducting coal surface-mining operations,” and by civil penalties assessed by WVDEP on coal operators for violations of the federally-approved state program. W.Va.Code § 22-3-11(g). . By letter dated May 24, 1994, OSM's Charleston Field Office Director informed the President of the NCCL that his comments would be evaluated and responded to in the Federal Register “when we make a final decision on the proposed program amendments.” (Letter from Blankenship to Davis of 5/24/94). . In these statements, OSM failed to address who would be considered a “landowner” responsible for discharges under the Clean Water Act. For example, both the WVDEP and OSM failed to state or discuss whether the term \"landowner” could apply to persons owning only the mineral estate rather than the surface; or to persons owning the surface estate but who have no rights in the mineral being mined; or" } ]

[ { "docid": "1882662", "title": "", "text": "costs is further mandated by the SMCRA’s bonding provisions. The SMCRA requires permittees to file reclamation bonds “sufficient to assure the completion of the reclamation plan ... in the event of forfeiture.” 30 U.S.C. § 1259. OSM has also recognized permittee/operator liabilities do not extend to mineral lessors or other landowners. In its original ownership and control rule making, OSM recognized lessors and mineral owners should not be presumed to control operators, much less be directly responsible for the operator’s compliance with the SMCRA: “[OSM] has decided not to establish a standard whereby a coal owner or lessor would be presumed to control the conduct of a surface coal mining operation if it receives any economic benefit from the mining or marketing of coal. Such a presumption would be too broad because in almost every contract mining situation the coal owner or lessor derives some economic benefit from the mining and marketing of the coal produced.” 53 Fed.Reg. at 38878 (Oct. 3,1988) (emphasis added). By approving the challenged regulation, OSM has attempted to externalize the costs of reclamation in direct contravention of the clear statutory language and legislative history of the SMCRA. The amended regulation effectively allows WVDEP to transfer the costs of reclamation from operators and permittees (and the reclamation bond pool they finance) to the landowners expressly protected under the SMCRA. Thus, to the extent C.S.R. § 38-2-12.4(e) attempts to impose liability on landowners and others for the costs of reclamation, it is inconsistent with the SMCRA. CONCLUSION Based upon the foregoing reasons, the Court declares and adjudges C.S.R. § 38-2-12.4(e) was issued and approved invalidly by OSM. Accordingly, the Court GRANTS Plaintiffs motion for summary judgment and DENIES Defendants’ motion for summary judgment. The Court ORDERS the action dismissed with prejudice. . Also pending is Plaintiff’s Motion for Leave to File Surreply with the proposed surreply attached thereto. The Court GRANTS the motion and directs the Clerk to treat as filed the proposed surreply. . Cat Run asserts, and Defendants do not challenge, it has standing because the Secretary's approval of changes to West Virginia's surface mining" }, { "docid": "10072844", "title": "", "text": "West Virginia’s alternative bonding system no longer meets the requirements of 30 CFR § 800.11(e). Furthermore, it is not achieving the objectives and purposes of the conventional bonding program set forth in section 509 [30 U.S.C. § 1259] of SMCRA since the amount of bond and other guarantees under the West Virginia program are not sufficient to assure the completion of reclamation. Hence, the Director is requiring West Virginia to eliminate the deficit in the State’s alternative bonding system and to ensure that sufficient funds will be available to complete reclamation, including the treatment of polluted water, at all existing and future bond forfeiture sites. Conservancy, 147 F.Supp.2d at 479 (citations omitted). Part 733 proceedings are one administrative route to remedy Plaintiffs complaint and bring West Virginia’s surface mining reclamation bonding system into compliance with federal law. Under part 733, if the State fails to remedy the cited deficiency, the OSM Director shall either 1) substitute federal for state enforcement of all or part of the State program or 2) recommend the Secretary of the Interior withdraw approval of all or part of the State program, leading to federal enforcement and potential promulgation of a federal program for the State. See 30 C.F.R. §§ 733.12(e), (f), (g). Part 733 is a means to an end, not an end in itself. The injury of which Plaintiff complains is the inadequate state bonding program, which is less stringent than and inconsistent with federal law, and concomitantly, OSM’s failure to compel West Virginia authorities to remedy the problem. The fund’s inadequacy for more than a decade has caused further injuries: unreclaimed mine sites, polluted state streams, and “an immense state liability, incurred by the mine operators, but borne by the taxpayers.” Conservancy, 147 F.Supp.2d at 481. OSM has now taken one tentative step toward a remedy, but Plaintiffs injury continues unless and until 1) West Virginia implements a state reclamation bonding system sufficient to satisfy SMCRA §§ 1259(a) and 30 C.F.R. § 800.11, or 2) OSM Director Owens substitutes federal enforcement, or 3) Secretary Norton withdraws approval of the State program in whole" }, { "docid": "10072861", "title": "", "text": "courts “shall ... compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. §§ 555, 706(1). . The regulation requires an approved alternative bonding system to achieve objectives and purposes of the bonding program: (1) The alternative must assure that the regulatory authority will have available sufficient money to complete the reclamation plan for any areas which may be in default at anytime; and (2) The alternative must provide a substantial economic incentive for the permittee to comply with all reclamation provisions. 30 C.F.R. § 800.11(e); see also 30 U.S.C. §§ 1259(a),(c). . Enforcement of a State program would be appropriate when the State failed to enforce its own program; enforcement of an inadequate State program would be unavailing. Thus, the alternative remedy, to withdraw approval, is the correct one in the instant situation. . When a statute or regulation uses the word \"shall,” a mandatory duty is imposed upon the subject of the command. See e.g. United States v. Monsanto, 491 U.S. 600, 607, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989)(by using \"shall\" in civil forfeiture statute, \"Congress could not have chosen stronger words to express its intent that forfeiture be mandatory in cases where the statute applied.”). . Counts 1 and 2 provide alternative enforcement methods, both leading ultimately to promulgation of a federal reclamation bonding program. Accordingly, having found the Director had a mandatory duty under Count 2, Plaintiff's motion for partial summary judgment on Count 1 is DENIED as moot. . The Court does not know whether such a request was made. As of August 9, 2001, it had not been. (See W. Va. Coal Ass'n's Resp. to PL's Request to Take Judicial Notice, Ex. 1.) . Section 736 provides for \"promulgation, implementation, maintenance, administration, revision and termination of a Federal program for a State for ... surface coal mining and reclamation operations[.]” 30 C.F.R. § 736.1." }, { "docid": "10056250", "title": "", "text": "of the third phase. 48 Fed. Reg. 32938 (1983). . SMCRA § 509(a) provides: After a surface coal mining and reclamation permit application has been approved ... the applicant shall file with the regulatory authority ... a bond for performance payable, as appropriate, to the United States or to the State, and conditional upon faithful performance of all the requirements of this Act and the permit. The bond shall cover that area of land within the permit area upon which the operator will initiate and conduct surface coal mining and reclamation operations within the initial term of the permit. As succeeding increments of surface coal mining and reclamation operations are to be initiated and conducted within the permit area, the permittee shall file with the regulatory authority an additional bond or bonds to cover such increments in accordance with this section. The amount of the bond required for each bonded area shall depend upon the reclamation requirements of the approved permit.... . SMCRA § 509(b) reads: Liability under the bond shall be for the duration of the surface coal mining and reclamation operation and for a period coincident with operator’s responsibility for revegetation requirements in section 515. .SMCRA § 509(c) (emphasis added) provides: The regulatory authority may accept the bond of the applicant itself without separate surety when the applicant demonstrates to the satisfaction of the regulatory authority the existence of a suitable agent to receive service of process and a history of financial solvency and continuous operation sufficient for authorization to self-insure or bond such amount or in lieu of the establishment of a bonding program, as set forth in this section, the Secretary may approve as part of a State or Federal program an alternative system that will achieve the objectives and purposes of the bonding program pursuant to this section. . 30 C.F.R. § 800.14 reads: Determination of bond amount. (a) The amount of the bond required for each bonded area shall: (1) Be determined by the regulatory authority; (2) Depend upon the requirements of the approved permit and reclamation plan; (3) Reflect the probable difficulty of" }, { "docid": "1882655", "title": "", "text": "contends the notice was inadequate partially because OSM breached certain duties it has under the SMCRA. In approving newly proposed state regulations, OSM must determine whether the proposed regulations are “consistent with” the SMCRA, see 30 U.S.C. § 1253(a)(7), and “no less effective than” OSM’s own regulations, see 30 C.F.R. § 730.5. Concerning West Virginia’s proposed “alternative bonding” regulations, OSM is required to fulfill this duty by making two determinations. First, OSM must determine whether the alternative bonding program would achieve the objectives of the SMCRA’s bonding program, namely, to establish a bonding mechanism sufficient to assure complete reclamation of mining operations. 30 U.S.C. § 1259(c); 30 C.F.R. § 800.14. Second, OSM must determine the alternative bonding system “provide[s] a substantial economic incentive ... to comply with all reclamation provisions.” .30 C.F.R. § 800.11(e)(2) (emphasis added). Here, OSM failed to make either determination because it failed to apprehend the reach of the regulation proposed by WVDEP. Rather than address the NCCL’s comments regarding the potentially expansive scope of the amendment, OSM advanced a series of confusing and conclusory statements that validated the concerns of the NCCL. OSM contended: (1) it does not know what WVDEP intended as the scope of the phrase “other responsible parties,” Answer ¶ 17 ; and (2) “it is commonly understood that it would include any other person who may be responsible for the mining operations,” 60 Fed.Reg. 51900, 51909. Neither of these vague and contradictory assertions identify and define “other responsible party.” Both assertions demonstrate OSM’s lack of understanding of the scope and definition of the regulation it was reviewing. Thus, OSM provided no insight into the meaning of “other responsible party.” Given OSM’s own confusion, it could not have discharged its obligation to determine whether the proposed rule was consistent with the SMCRA, whether West Virginia’s alternative bonding program was sufficient to assure complete reclamation of mining operations, or whether the alternative bonding system provides substantial economic incentive for reclamation to be completed. Plaintiff further contends OSM breached its duties under the APA. The APA provides after public notice, an opportunity for public comment" }, { "docid": "10072842", "title": "", "text": "present, live controversy. American Tunaboat Ass’n v. Brown, 67 F.3d 1404, 1407 (9th Cir.1995). Action by a defendant that simply accords all the relief demanded by the plaintiff may moot an action. See 13A Federal Practice and Procedure § 3533.2. If nothing further would be ordered by the court, there is no point in proceeding to decide the merits. Id. The Federal Defendants argue OSM’s initiation of Part 733 proceedings moots the relief Plaintiff requests, and moots the argument the agency has unreasonably delayed this action. On this basis, they urge the Court lacks jurisdiction and must dismiss this action. The gravamen of Plaintiffs complaint is that West Virginia’s alternative reclamation bonding system violates federal law. SMCRA requires, “The amount of the [reclamation] bond shall be sufficient to assure the completion of the reclamation plan if the work had to be performed by the regulatory authority in the event of forfeiture[.]” 30 U.S.C. § 1259(a). The Secretary of the Interior “may approve as part of a State or Federal program an alternative system that will achieve the objectives and purposes of the bonding program pursuant to this section.” 30 U.S.C. § 1259(c). The West Virginia alternative bonding system was approved by OSM in 1983. Since at least 1991, however, OSM has known officially that the West Virginia reclamation bonding program failed (and today continues to fail) to satisfy the federal statutory requirement for adequate funding. As the Court previously recounted: [In 1995] OSM reported ... that “[o]n October 1, 1991 ... OSM notified West Virginia in accordance with 30 C.F.R. § 732.17 that its regulatory program no longer met all Federal requirements.” [60 Fed Reg. 51909.] The federal agency’s annual reviews since 1989 showed the State alternative bonding system’s liabilities exceeded assets and, by 1994, the deficit was twenty-two million two hundred thousand dollars ($22,200,000). Id. While approving the proposed increases in the West Virginia site specific bond cap and the per-ton tax rate, OSM found these increases “still insufficient to ensure complete reclamation, including treatment of polluted water.” Id. at 51910. OSM concluded: Therefore, the [OSM] Director finds that" }, { "docid": "1882642", "title": "", "text": "MEMORANDUM OPINION AND ORDER HADEN, Chief Judge. Pending are the parties’ cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The parties agree there are no genuine issues of material fact extant. They have submitted the Administrative Record and memoranda in support of their respective positions. The matter is mature for the Court’s consideration. THE STANDARD Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper only: “If the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” Fed.R.Civ.P. 56(c). THE UNDISPUTED FACTS Plaintiff Cat Run Coal Company (“Cat Run”) is a member of the National Council of Coal Lessors, Incorporated (“NCCL”), and the owner of approximately thirty-five thousand acres of mineral and surface properties in West Virginia. Coal is mined on some portions of these properties pursuant to leases from Cat Run, while other portions of Cat Run’s properties, which may contain minable coal reserves, are adjacent to properties owned by others. Mining on these properties could cause mining-related pollutants to discharge across, onto or from Cat Run’s properties into area streams. Defendant Bruce Babbitt is the Secretary of the Interior (“Secretary”) who, acting through the Federal Office of Surface Mining, Reclamation and Enforcement (“OSM”), is charged under the Federal Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. §§ 1201 et seq., with reviewing and approving changes to West Virginia’s surface mining program. Defendant Robert Uram is the Director of OSM. The regulatory authority responsible for implementing the state surface mining program in West Virginia is the West Virginia Division of Environmental Protection (‘WVDEP”). OSM requires states to adopt reclamation bonding programs to ensure complete recla mation of mine sites. OSM’s regulations provide that if a reclamation bond is forfeited, but is inadequate to complete reclamation, “the operator shall be liable for remaining costs.” 30 C.F.R. § 800.50(d)(1) (emphasis added). OSM’s regulations also allow" }, { "docid": "16704382", "title": "", "text": "and the dates by which other amendments were to be adopted by Pennsylvania. The regulations nonetheless purport to “contain[ ] all rules applicable only within Pennsylvania that have been adopted under [SMCRA].” § 938.1. See also § 900.12. An important environmental problem addressed by SMCRA — and by Pennsylvania — was the reclamation of sites after mining operations have ended. In order for a state regulatory program to be initially approved by the Secretary, therefore, the program must include a bonding plan designed to ensure that money is available to reclaim, if necessary, various mine sites, i.e., to restore the site after the coal has been mined. 30 U.S.C. §§ 1257(d), 1258; 30 C.F.R. § 800.11(e)(1). To receive a mining permit, operators are required to submit a detailed reclamation plan for the site in question. 30 U.S.C. §§ 1257(d), 1258; 52 Pa.C.S.A. § 1396.4(a)(2). Operators are also required to post a bond to cover the costs of that plan if they default on it. 30 U.S.C. § 1259; 52 Pa.C.S.A § 1396.4(d). Under SMCRA, the bonds collected by states from mining operators must be “sufficient to assure the completion of the reclamation plan if the work had to be performed by the regulatory authority,” i.e., the state. 30 U.S.C. § 1259(a). As long as the federal objectives of the bonding program are met, a state may also develop an alternative bonding program, such as the one challenged here. 30 C.F.R. § 800.11(e). That regulation requires that, under the alternative program, the state regulatory authority collect sufficient money to complete a reclamation plan for any site which may be in default. Pennsylvania’s alternative bonding program was conditionally approved. As part of that program, Pennsylvania requires that before commencing mining operations, an operator must file a bond with the DEP. in an amount determined by the department based upon the total estimated cost to the Commonwealth of completing the approved reclamation plan, or in such other amount and form as may be established by the department pursuant to regulations for an alternate coal bonding program which shall achieve the objectives and purposes" }, { "docid": "1882663", "title": "", "text": "costs of reclamation in direct contravention of the clear statutory language and legislative history of the SMCRA. The amended regulation effectively allows WVDEP to transfer the costs of reclamation from operators and permittees (and the reclamation bond pool they finance) to the landowners expressly protected under the SMCRA. Thus, to the extent C.S.R. § 38-2-12.4(e) attempts to impose liability on landowners and others for the costs of reclamation, it is inconsistent with the SMCRA. CONCLUSION Based upon the foregoing reasons, the Court declares and adjudges C.S.R. § 38-2-12.4(e) was issued and approved invalidly by OSM. Accordingly, the Court GRANTS Plaintiffs motion for summary judgment and DENIES Defendants’ motion for summary judgment. The Court ORDERS the action dismissed with prejudice. . Also pending is Plaintiff’s Motion for Leave to File Surreply with the proposed surreply attached thereto. The Court GRANTS the motion and directs the Clerk to treat as filed the proposed surreply. . Cat Run asserts, and Defendants do not challenge, it has standing because the Secretary's approval of changes to West Virginia's surface mining program, which are the subject of this action, could require Cat Run as a landowner to pay the costs of reclaiming mine sites on or adjacent to its properties. . The SMCRA is designed to regulate the environmental impacts of surface coal mining. One of the primary objectives of the SMCRA is to \"establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” 30 U.S.C. § 1202(a). In general, reclamation under the SMCRA requires the surface of land be restored to its approximate original contour and water polluted by the mining operation be properly treated before leaving the mining site. 30 U.S.C. § 1265(b)(2) & (10); 30 C.F.R. §§ 780.18(b)(9) and 780.21. In order to achieve its goal of full reclamation of surface mining operations, the SMCRA requires those who propose to conduct surface mining operations to first obtain a permit. In order to obtain a permit, an applicant must, among other things, submit a detailed reclamation plan and furnish a performance bond. This bond is" }, { "docid": "10056251", "title": "", "text": "of the surface coal mining and reclamation operation and for a period coincident with operator’s responsibility for revegetation requirements in section 515. .SMCRA § 509(c) (emphasis added) provides: The regulatory authority may accept the bond of the applicant itself without separate surety when the applicant demonstrates to the satisfaction of the regulatory authority the existence of a suitable agent to receive service of process and a history of financial solvency and continuous operation sufficient for authorization to self-insure or bond such amount or in lieu of the establishment of a bonding program, as set forth in this section, the Secretary may approve as part of a State or Federal program an alternative system that will achieve the objectives and purposes of the bonding program pursuant to this section. . 30 C.F.R. § 800.14 reads: Determination of bond amount. (a) The amount of the bond required for each bonded area shall: (1) Be determined by the regulatory authority; (2) Depend upon the requirements of the approved permit and reclamation plan; (3) Reflect the probable difficulty of reclamation, giving consideration to such factors as topography, geology, hydrology, and re-vegetation potential; and (4) Be based on, but not limited to, the estimated cost submitted by the permit applicant. (b) The amount of the bond shall be sufficient to assure the completion of the reclamation plan if the work has to be performed by the regulatory authority in the event of forfeiture, and in no case shall the total bond initially posted for the entire area under one permit be less than $10,000. (c) An operator’s financial responsibility under § 817.121(c) of this chapter for repairing material damage resulting from subsidence may be satisfied by the liability insurance policy required under § 800.60. . 30 C.F.R. § 800.15 instructs the regulatory authority to adjust the bond size to reflect any increase in reclamation costs. See Brief for the Secretary of the Interior as Appellee at 12. NWF maintains that once subsidence occurs, a mine operator will be unable to find a surety willing to post a bond to guarantee repair. We do not follow" }, { "docid": "1882669", "title": "", "text": "truth of the allegation contained in paragraph 17 that the reason the WVDEP proposed the regulation at issue was to recoup Special Reclamation Fund expenditures from landowners and others 'who are not, and cannot be, liable for such reclamation under either SMCRA or the WVSMCRA....'; therefore that allegation is denied.” . Plaintiff also contends OSM’s approval of C.S.R.. § 38-2-12.4(e) was inconsistent with the West Virginia Water Pollution Control Act (“WVWPCA”), W.Va.Code § 22-11-1, et seq. Because the Court finds the challenged statute is inconsistent with the SMCRA, it need not address this issue. . Indeed, it is the purpose of the SMCRA to \"assure that the rights of surface landowners and other persons with a legal interest in the land or appurtenances thereto are fully protected from such operations.” 30 U.S.C. § 1202(b). . The SMCRA is the descendant of a number of bills that were designed to address the deleterious effects of coal mining. See H.R.Rep. No. 95-218, 95th Cong., 1st Session, at 57 (1977) U.S.Code Cong. & Admin.News 1977, at 595. Two of these bills passed, but both met a Presidential veto. These bills were “fine-tuned” and passed as the SMCRA in 1977. The legislative history of the earlier bills further demonstrates Congress’ intent that the costs of mining should be borne solely by those engaged in the mining industry. . For a discussion of OSM’s ownership and control rules, see Arch Mineral Corp. v. Babbitt, 894 F.Supp. 974 (S.D.W.Va.1995) (Haden, C.J.). . Moreover, in ensuring West Virginia's alternative bonding program achieves the objectives of the SMCRA, OSM consistently has demanded all reclamation costs, including water treatment, be covered not by landowners and others, but solely by the bond system funded by coal operators and permittees. Accordingly, OSM has: (1) refused to approve, on the grounds it was inconsistent with the SMCRA, a WVDEP regulation that would have made use of the Special Reclamation Fund discretionary, 30 C.F.R. § 948.15(k)(8) (1994); (2) directed WVDEP to adopt a regulation making WVDEP's use of the bond pool mandatory, 30 C.F.R. § 948.16(p) (1990) and 53 Fed. Reg. 21304 (May" }, { "docid": "10072848", "title": "", "text": "or events indicate that the approved State program no longer meets the requirements of the Act or this chapter. 30 C.F.R. § 732.17(e)(3). As previously noted, in 1991 and again in 1995, OSM provided notice the State ABS did not meet the objectives and purposes of SMCRA, particularly 30 U.S.C. § 1259(a) and 30 C.F.R. § 800.11(e). In 1991 OSM made a finding “pursuant to 30 C.F.R. § 732.17” that “its regulatory program no longer met all Federal requirements” because of the deficit in the ABS. In 1995 OSM found: West Virginia’s alternative bonding system no longer meets the requirements of 30 CFR 800.11(e). Furthermore, it is not achieving the objectives and purposes of the conventional bonding program set forth in section 509 T30 U.S.C. § 1259] of SMCRA since the amount of bond and other guarantees under the West Virginia program are not sufficient to assure the completion of reclamation. 60 Fed.Reg. 51910. OSM now characterizes the 1995 action as “a finding pursuant to 30 C.F.R. § 732.17(e)(3)”. (Federal Defs.’ Reply Mem. in Supp. of Mot. to Dismiss at 5.) The Section 732 regulations next provide: (f)(1) If the Director determines that a State program amendment is required, the State regulatory authority shall, within 60 days after notification submit to the Director either a proposed written amendment or a description of an amendment ... and a timetable for enactment!)] 30 C.F.R. § 732.17(f)(1). In October 1991, OSM informed the West Virginia Commissioner of Energy an amendment was required to make the State ABS conform to the objectives and purposes of “the otherwise mandatory conventional bonding program.” (See PL’s Mot. for Partial Summ. J., Ex. 8.) The State did nothing and OSM did nothing. In 1995, the OSM Director determined a program amendment was required and provided notice in the Federal Register. At that time OSM required, inter alia, the State propose an amendment “to eliminate the deficit in the State’s alternative bonding system and to ensure that sufficient money will be available to complete reclamation, including the treatment of polluted water, at all existing and future bond forfeiture sites.”" }, { "docid": "10072838", "title": "", "text": "MEMORANDUM OPINION AND ORDER HADEN, Chief Judge. Pending are 1) Plaintiffs motion for partial summary judgment and a permanent injunction on Counts One, Two, and/or Three and 2) Defendants Norton and Ow ens’ (Federal Defendants’) motion to dismiss. For reasons discussed below, the Federal Defendants’ motion is DENIED, Plaintiffs motion for partial summary-judgment on Counts Two and Three is GRANTED, and the remaining motions are DENIED as moot. I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff West Virginia Highlands Conservancy (Conservancy) brought this civil action under the citizen suit provision of the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. §' 1270(a)(2). The Complaint alleged the state alternative bonding program for surface mine reclamation bonds was inadequate to meet the minimum requirements of SMCRA. Further, it alleged that in 1991, and again in 1995, the Office of Surface Mining (OSM) found the state program did not meet the objectives and purposes of federal law. At both times OSM ordered the State to bring the program into compliance, but as of 2000 the State had failed to do so. Instead, the State Division of Environmental Protection (DEP) continued to approve surface mining permits although the State’s program, which combined site specific bonds with a special reclamation fund, demonstrably was inadequate for the State to reclaim the land and treat water should the bonds be forfeited. In March 2001 the Court dismissed the State DEP Secretary from this action based on an Eleventh Amendment bar. See West Virginia Highlands Conservancy v. Norton, 147 F.Supp.2d 474 (S.D.W.Va.2001). Prior to his dismissal, DEP Secretary Callaghan testified in the preliminary injunction hearing the West Virginia alternative bonding system did' not meet the requirements of federal law because the funding was “totally inadequate.” Id. at 476. The Secretary also testified the State surface mine bond reclamation program was “less stringent than and inconsistent with SMCRA.” Id. at 477. On June 19, 2001 Plaintiff moved for partial summary judgment and a permanent injunction against the Federal Defendants declaring they had unreasonably delayed mandatory enforcement action and ordering them either 1) to implement a federal surface mining program for" }, { "docid": "1882670", "title": "", "text": "of these bills passed, but both met a Presidential veto. These bills were “fine-tuned” and passed as the SMCRA in 1977. The legislative history of the earlier bills further demonstrates Congress’ intent that the costs of mining should be borne solely by those engaged in the mining industry. . For a discussion of OSM’s ownership and control rules, see Arch Mineral Corp. v. Babbitt, 894 F.Supp. 974 (S.D.W.Va.1995) (Haden, C.J.). . Moreover, in ensuring West Virginia's alternative bonding program achieves the objectives of the SMCRA, OSM consistently has demanded all reclamation costs, including water treatment, be covered not by landowners and others, but solely by the bond system funded by coal operators and permittees. Accordingly, OSM has: (1) refused to approve, on the grounds it was inconsistent with the SMCRA, a WVDEP regulation that would have made use of the Special Reclamation Fund discretionary, 30 C.F.R. § 948.15(k)(8) (1994); (2) directed WVDEP to adopt a regulation making WVDEP's use of the bond pool mandatory, 30 C.F.R. § 948.16(p) (1990) and 53 Fed. Reg. 21304 (May 23, 1990); (3) refused to approve a WVDEP regulation limiting the annual expenditure of bond pool monies on water treatment to twenty-five percent (25%) of bond pool fee collections, 30 C.F.R. § 948.16(jjj) (1996) and 60 Fed.Reg. 51900, 51902 (Oct. 4, 1995); and (4) directed West Virginia to amend its bonding program to ensure sufficient money be available to complete reclamation, including the perpetual treatment of polluted water to meet the Clean Water Act standards, at all existing and future bond forfeiture sites, 30 C.F.R. § 948.16(111) (1996). In so doing, OSM has required an industry-supported bond system that ensures the payment of all present and future reclamation costs and, thereby, one that internalizes the costs of mining in a manner consistent with the SMCRA. . Furthermore, OSM's own bonding regulations recognize the operator or permittee alone must bear the costs of reclamation. In the event of bond forfeiture, its regulations provide that the regulatory' authority may complete reclamation and \"recover from the operator all costs of reclamation in excess of the amount forfeited.” 30" }, { "docid": "1882667", "title": "", "text": "Special Reclamation Fund, which supplements the site-specific reclamation performance bonds furnished by permittees. The Special Reclamation Fund is funded hy a fee of $.03 per ton of coal mined assessed against \"every person conducting coal surface-mining operations,” and by civil penalties assessed by WVDEP on coal operators for violations of the federally-approved state program. W.Va.Code § 22-3-11(g). . By letter dated May 24, 1994, OSM's Charleston Field Office Director informed the President of the NCCL that his comments would be evaluated and responded to in the Federal Register “when we make a final decision on the proposed program amendments.” (Letter from Blankenship to Davis of 5/24/94). . In these statements, OSM failed to address who would be considered a “landowner” responsible for discharges under the Clean Water Act. For example, both the WVDEP and OSM failed to state or discuss whether the term \"landowner” could apply to persons owning only the mineral estate rather than the surface; or to persons owning the surface estate but who have no rights in the mineral being mined; or to persons owning mineral rights but not rights in the coal being mined, or to persons who held no interest in the mineral or surface in place but who are entitled to an overriding royalty for coal mined from a particular tract; or to mineral or surface lessees. Nonetheless, the relevant issue is not whether landowners can be held liable for water discharges under water pollution laws, but rather whether landowners can be held liable under a SMCRA-based regulation. . . This Court has jurisdiction pursuant to 5 U.S.C. § 702 (Administrative Procedures Act), 28 U.S.C. § 1331 (diversity), and 30 U.S.C. § 1276(a) (SMCRA). Venue is proper pursuant to 30 U.S.C. § 1276(a). . Because the issues of the case are resolved on other grounds, it would be inappropriate for the Court to reach the Constitutional question. See Mills v. Rogers, 457 U.S. 291, 305, 102 S.Ct. 2442, 2451, 73 L.Ed.2d 16 (1982) (citations omitted). . Defendants' Answer states: \"The Defendants are without knowledge or information sufficient to form a belief as to the" }, { "docid": "10072843", "title": "", "text": "achieve the objectives and purposes of the bonding program pursuant to this section.” 30 U.S.C. § 1259(c). The West Virginia alternative bonding system was approved by OSM in 1983. Since at least 1991, however, OSM has known officially that the West Virginia reclamation bonding program failed (and today continues to fail) to satisfy the federal statutory requirement for adequate funding. As the Court previously recounted: [In 1995] OSM reported ... that “[o]n October 1, 1991 ... OSM notified West Virginia in accordance with 30 C.F.R. § 732.17 that its regulatory program no longer met all Federal requirements.” [60 Fed Reg. 51909.] The federal agency’s annual reviews since 1989 showed the State alternative bonding system’s liabilities exceeded assets and, by 1994, the deficit was twenty-two million two hundred thousand dollars ($22,200,000). Id. While approving the proposed increases in the West Virginia site specific bond cap and the per-ton tax rate, OSM found these increases “still insufficient to ensure complete reclamation, including treatment of polluted water.” Id. at 51910. OSM concluded: Therefore, the [OSM] Director finds that West Virginia’s alternative bonding system no longer meets the requirements of 30 CFR § 800.11(e). Furthermore, it is not achieving the objectives and purposes of the conventional bonding program set forth in section 509 [30 U.S.C. § 1259] of SMCRA since the amount of bond and other guarantees under the West Virginia program are not sufficient to assure the completion of reclamation. Hence, the Director is requiring West Virginia to eliminate the deficit in the State’s alternative bonding system and to ensure that sufficient funds will be available to complete reclamation, including the treatment of polluted water, at all existing and future bond forfeiture sites. Conservancy, 147 F.Supp.2d at 479 (citations omitted). Part 733 proceedings are one administrative route to remedy Plaintiffs complaint and bring West Virginia’s surface mining reclamation bonding system into compliance with federal law. Under part 733, if the State fails to remedy the cited deficiency, the OSM Director shall either 1) substitute federal for state enforcement of all or part of the State program or 2) recommend the Secretary of the" }, { "docid": "1882643", "title": "", "text": "Cat Run, while other portions of Cat Run’s properties, which may contain minable coal reserves, are adjacent to properties owned by others. Mining on these properties could cause mining-related pollutants to discharge across, onto or from Cat Run’s properties into area streams. Defendant Bruce Babbitt is the Secretary of the Interior (“Secretary”) who, acting through the Federal Office of Surface Mining, Reclamation and Enforcement (“OSM”), is charged under the Federal Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. §§ 1201 et seq., with reviewing and approving changes to West Virginia’s surface mining program. Defendant Robert Uram is the Director of OSM. The regulatory authority responsible for implementing the state surface mining program in West Virginia is the West Virginia Division of Environmental Protection (‘WVDEP”). OSM requires states to adopt reclamation bonding programs to ensure complete recla mation of mine sites. OSM’s regulations provide that if a reclamation bond is forfeited, but is inadequate to complete reclamation, “the operator shall be liable for remaining costs.” 30 C.F.R. § 800.50(d)(1) (emphasis added). OSM’s regulations also allow the WVDEP to complete reclamation at bond forfeiture sites and to “recover from the operator all costs of reclamation in excess of the amount forfeited.” 30 C.F.R. § 800.50(d)(1) (emphasis added). On June 28, 1993, WVDEP submitted for OSM’s approval numerous proposed changes to the WVSMCRA. Included among those changes was a revision to the Code of State Regulations (C.S.R.) at § 38-2-12.4. Prior to the amendment, the regulation provided “[t]he permittee shall be hable for all reclamation costs, and the [Director of the WVDEP] shall collect from the permittee all costs in excess of the amount forfeited.” C.S.R. § 38-2-12.4 (effective June 1, 1991) (emphasis added). These collections were deposited with the Special Reclamation Fund to replace funds used by WVDEP. As modified regulation 12.4(e) states, “[t]he operator, permittee, or other responsible party shall be hable for al. costs in excess of the amount forfeited. The Director may commence civil, criminal or other appropriate action to collect such costs.” C.S.R. § 38-2-12.4(e) (emphasis added). OSM announced receipt of the proposed amendments and invited pubhe" }, { "docid": "1882664", "title": "", "text": "program, which are the subject of this action, could require Cat Run as a landowner to pay the costs of reclaiming mine sites on or adjacent to its properties. . The SMCRA is designed to regulate the environmental impacts of surface coal mining. One of the primary objectives of the SMCRA is to \"establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” 30 U.S.C. § 1202(a). In general, reclamation under the SMCRA requires the surface of land be restored to its approximate original contour and water polluted by the mining operation be properly treated before leaving the mining site. 30 U.S.C. § 1265(b)(2) & (10); 30 C.F.R. §§ 780.18(b)(9) and 780.21. In order to achieve its goal of full reclamation of surface mining operations, the SMCRA requires those who propose to conduct surface mining operations to first obtain a permit. In order to obtain a permit, an applicant must, among other things, submit a detailed reclamation plan and furnish a performance bond. This bond is intended to fund reclamation should the permittee fail or refuse to reclaim the operation. . A state regulatory authority may become the agency primarily responsible for permitting and assuring compliance with the procedures and performance standards of the SMCRA. 30 U.S.C. § 1253. To obtain this authority, a state must adopt a regulatory program that contains laws no less stringent than the SMCRA and regulations no less effective than the SMCRA's regulations and which allocates adequate resources to implement the program. 30 U.S.C. § 1253(a)(1), (7). If, in the Secretary's opinion, a state program meets these criteria, the state agency becomes the primary regulatory authority responsible for enforcing and implementing the state program. The State of West Virginia submitted such a program (comprised of the West Virginia Surface Coal Mining and Reclamation Act, W.Va.Code § 22-3-1 et seq. (“WVSMCRA”) and accompanying regulations) and received primary regulatory authority for implementation and administration of the state program from the Secretary. See 30 C.F.R. § 948.1 (1991); 46 Fed.Reg. 5954 (Jan. 21, 1981). . Under the SMCRA, an" }, { "docid": "16704383", "title": "", "text": "bonds collected by states from mining operators must be “sufficient to assure the completion of the reclamation plan if the work had to be performed by the regulatory authority,” i.e., the state. 30 U.S.C. § 1259(a). As long as the federal objectives of the bonding program are met, a state may also develop an alternative bonding program, such as the one challenged here. 30 C.F.R. § 800.11(e). That regulation requires that, under the alternative program, the state regulatory authority collect sufficient money to complete a reclamation plan for any site which may be in default. Pennsylvania’s alternative bonding program was conditionally approved. As part of that program, Pennsylvania requires that before commencing mining operations, an operator must file a bond with the DEP. in an amount determined by the department based upon the total estimated cost to the Commonwealth of completing the approved reclamation plan, or in such other amount and form as may be established by the department pursuant to regulations for an alternate coal bonding program which shall achieve the objectives and purposes of the bonding program. 52 Pa.C.S.A. § 1396.4(d). In the 1982 approval of the Pennsylvania program, the Secretary explicitly found that the program met SMCRA’s minimum criteria for regulating performance bonds. 47 Fed. Reg. at 33056. Also as part of its program, Pennsylvania implemented guidelines detailing how the amounts of such bonds were to be calculated. First, complying with the explicit federal minimum, 30 U.S.C. § 1259(a), Pennsylvania determined that no bond shall be under $10,000. 52 Pa. C.S.A. § 1396.4(d); 25 Pa.Code § 86.150. Second, under Pennsylvania’s bonding program, bonds are supplemented by money from a “bond pool” that may be applied to any defaulting site in the system. This supplemental money is derived from a nonrefundable fee of $100 (originally $50) per acre charged to all operators when a permit is initially issued. 25 Pa.Code § 86.17(e). The Secretary initially expressed concern “about the continuing adequacy of the amount of the bond and permit fee required for permit areas that is applied to bond forfeitures.” 47 Fed.Reg. at 33056. The Secretary required Pennsylvania" }, { "docid": "1882671", "title": "", "text": "23, 1990); (3) refused to approve a WVDEP regulation limiting the annual expenditure of bond pool monies on water treatment to twenty-five percent (25%) of bond pool fee collections, 30 C.F.R. § 948.16(jjj) (1996) and 60 Fed.Reg. 51900, 51902 (Oct. 4, 1995); and (4) directed West Virginia to amend its bonding program to ensure sufficient money be available to complete reclamation, including the perpetual treatment of polluted water to meet the Clean Water Act standards, at all existing and future bond forfeiture sites, 30 C.F.R. § 948.16(111) (1996). In so doing, OSM has required an industry-supported bond system that ensures the payment of all present and future reclamation costs and, thereby, one that internalizes the costs of mining in a manner consistent with the SMCRA. . Furthermore, OSM's own bonding regulations recognize the operator or permittee alone must bear the costs of reclamation. In the event of bond forfeiture, its regulations provide that the regulatory' authority may complete reclamation and \"recover from the operator all costs of reclamation in excess of the amount forfeited.” 30 C.F.R. § 800.50(d) (emphasis added). The regulations do not permit actions against landowners. OSM’s regulations also provide that state alternative bonding systems must provide permittees with substantial economic incentives to reclaim mine sites. 30 C.F.R. § 800.11(e)(2). . The Court finds no evidence, however, to support Plaintiff’s contention that OSM’s actions were arbitrary or capricious." } ]

[ { "docid": "21592112", "title": "", "text": "a cause of action under § 55-80 against Providence. On December 7, 1992, the district court denied the Pattersons’ motion for reconsideration of its order of October 30, 1992. On November 16, 1992, the defendants filed a motion to dismiss all remaining counts of the complaint. By order dated December 18, 1992, the district court granted the motion and dismissed the two federal claims, Fed.R.Civ.P. 12(b)(6). Because this dismissal extinguished the district court’s supplemental jurisdiction over the remaining state claims, they were dismissed without prejudice. Although the district court granted the Pattersons ten days in which to file an amended complaint, no amended complaint was filed. The Pattersons appeal the district court’s dismissal of their § 55-80 fraudulent conveyance claim for failure to state a claim upon which relief can be granted. The Pattersons also appeal the district court’s Rule 12(b)(6) dismissal of the claim which was based upon § 1 of the Sherman Act. On December 18, 1992, the Pattersons refiled in the Circuit Court for Fairfax County, Virginia, the same complaint, minus only the Sherman Act and RICO claims, that had been dismissed by the district court. That action was dismissed. II The standard of review of a Rule 12(b)(6) dismissal is de novo. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992). This court will construe factual .allegations in the nonmoving party’s favor and will treat them as true, but is not so bound with respect to the complaint’s legal conclusions. Martin Marietta Corp. v. International Telecommunications Satellite Org., 978 F.2d 140, 142 (4th Cir.1992). We will affirm a dismissal for failure to state a claim only if it appears that “the plaintiffs would not be entitled to relief under any facts which could be proved in support of their claim.” Schatz, 943 F.2d at 489. Ill Section 55-80 of the Virginia Code provides: Void Fraudulent Acts; Bona fide Purchasers Not Affected.— Every gift, conveyance, assignment or transfer of, or charge upon, any estate, real or personal, every suit commenced or decree, judgment or execution" } ]

[ { "docid": "16396464", "title": "", "text": "file a Second Amended Complaint to reassert claims pursuant to the Carmack Amendment. Plaintiffs did so, and' Defendant Stevens now moves to dismiss the claims against him pursuant to “the claims filing period and- statute of limitations under the Carriage of Goods by Sea Act (‘COGSA’), or, in the alternative, the Carmack Amendment.” (Def. Mem. at 1). ANALYSIS A. Standard of Review A Rule 12(b)(6) motion should be granted only if, after accepting all wellpleaded allegations in the complaint as true, it appears certain that Plaintiffs cannot prove any set of facts in support of their claims that entitles them to relief. Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). The complaint should not be dismissed unless it is certain that the plaintiff is not entitled to relief under any legal theory that might plausibly be suggested by the facts alleged. Mylan Labs. Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). Further, “[u]nder the liberal rules of federal pleading, a complaint should survive a motion to dismiss if it sets out facts sufficient for the court to infer that all the required elements of the cause of action are present.” Wolman v. Tose, 467 F.2d 29, 33 n. 5 (4th Cir.1972). B. Statute of Limitations for the Carmack Amendment or COGSA Defendant Stevens raises two arguments in support of dismissal — first, that Plaintiffs’ claims are barred by the statute of limitations of COGSA, and alternatively, that Plaintiffs’ claims are barred by the statute of limitations of the Carmack Amendment should COGSA not apply. The court considers each basis for dismissal in turn. 1. COGSA Defendant Stevens' contends that Plaintiffs’ claims against it are governed by COGSA, rather than the Carmack Amendment, because COGSA applies to the ocean portion of any foreign shipment. COGSA governs “every bill of lading ... which is evidence of a contract for the carriage of goods by sea to or from ports of the United States [and] in foreign trade.” 46 U.S.C. app. § 1300; see also Schramm v. Shipco, 364 F.3d 560, 565 (4th Cir.2004)(“COGSA applies from the loading of" }, { "docid": "21942607", "title": "", "text": "law claims of trademark infringement and unfair competition (Count VI), dilution (Count VII), and deceptive acts and practices (Count VIII). RxNorth moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) to dismiss Counts II-IV and CanadaPharma-cy, Universal, and CrossBorder move for judgment on the pleadings to dismiss Counts II-VIII. MedCenter and Canada-Drugs move to dismiss Counts II-VIII pursuant to Fed.R.Civ.P. 12(b)(6). No defendant has moved to dismiss the patent infringement claims and those claims are not before the Court on these motions. Thorkelson moves to dismiss the claims against him for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). DISCUSSION First, I review the standards applicable to motions to dismiss for failure to state a claim and motions for judgment on the pleadings. Second, I discuss defendants’ motions to dismiss plaintiffs’ claims on the merits. Third, I discuss Thorkelson’s motion to dismiss for lack of personal jurisdiction. A. Motions to Dismiss and for Judgment on the Pleadings In considering a motion to dismiss, I must accept the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Bernheim v. Lift, 79 F.3d 318, 321 (2d Cir.1996). A complaint may not be dismissed under Fed.R.Civ.P. 12(b)(6) “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.” Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The test for dismissal is not whether the plaintiff is likely to prevail, but whether it is entitled to offer evidence to support its claims. Id. “In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.” Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 155 (2d Cir.2002) (“Consideration of extraneous material in" }, { "docid": "12872242", "title": "", "text": "Eight), and violate the Guarantee Clause (Count Nine). Defendants move to dismiss Plaintiffs’ claims in their entirety pursuant to Federal Rule of Civil Procedure 12(b)(1) and Rule 12(b)(6). Defendants argue that the Court lacks subject matter jurisdiction to hear their claims because Plaintiffs do not have standing, the issues are unripe, and the Anti-Injunction Act withdraws jurisdiction over their suit. If jurisdiction is found, Defendants argue that all of the counts should be dismissed for failure to state a claim upon which relief can be granted. II. Applicable Law A. Rule 12(b)(1), Subject Matter Jurisdiction On a Rule 12(b)(1) motion, the plaintiff bears the burden of proving that subject matter jurisdiction exists. Piney Run Pres. Ass’n v. County Comm’rs, 523 F.3d 453, 459 (4th Cir.2008). In considering the motion, a court must accept as true all material factual allegations in the complaint and must construe the complaint in favor of the plaintiff. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). A court should \"regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.\" Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). The moving party’s motion to dismiss should be granted when \"the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.\" Id. B. Rule 12(b)(6), Failure to State a Claim A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; \"it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.\" Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Although a complaint \"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 a cause of action’s elements will not do.\" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555," }, { "docid": "5075101", "title": "", "text": "without converting the proceeding to one for summary judgment.” Adams, 697 F.2d at 1219 (citing Mims v. Kemp, 516 F.2d 21 (4th Cir.1975)). “Unlike the procedure in a Rule 12(b)(6) motion where there is a presumption reserving the truth finding role to the ultimate factfinder, the court in a Rule 12(b)(1) hearing weighs the evidence to determine its jurisdiction.” Id. Only when the jurisdictional facts are intertwined with the merits of the dispute should the court decline to decide the jurisdictional issue. Id. (citations omitted). A motion to dismiss should be denied “‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” De Sole v. United States, 947 F.2d 1169, 1177 (4th Cir.1991) (quoting Coakley & Williams, Inc. v. Shatterproof Glass Corp., 706 F.2d 456, 457 (4th Cir.1983)). When considering a Rule 12(b)(6) motion, the plaintiffs allegations must be taken as true. Revene v. Charles County Comm’rs, 882 F.2d 870, 873 (4th Cir.1989). A motion to dismiss under Rule 12(b)(6) must also be assessed in light of Rule 8(a)’s liberal pleading standards. Rule 8 calls for “a short and plain statement of the claim showing that the pleader is entitled to relief.” The complaint needs only to state sufficient facts to enable the defendant to draft a responsive pleading. 5A Charles A. Wright, & Arthur R. Miller, Federal Practice and Procedure, § 1357. Thus, a complaint should survive a motion to dismiss if it sets out facts sufficient for the court to infer that all of the required elements of the cause of action are present. Wolman v. Tose, 467 F.2d 29, 33 n. 5 (4th Cir.1972) (citing Wright & Miller, § 1216). III. In the context of the military, it is well settled that courts are particularly reluctant to interfere “upon the authority of the Executive in military and national security affairs.” Dep’t of Navy v. Egan, 484 U.S. 518, 529, 108 S.Ct. 818, 825, 98 L.Ed.2d 918 (1988); Goldman v. Weinberger, 475 U.S. 503, 507-08, 106 S.Ct. 1310, 1313-14, 89 L.Ed.2d 478" }, { "docid": "14035005", "title": "", "text": "positions within the corporation. After being pressured, Peterson refused to discuss the situation further. On or about July 5,1995, the Leather Shop terminated Manns with no written or articulated reason. Manns filed charges with the Equal Employment Opportunity Commission at the Department of Labor and received a ‘Right to Sue Letter’ dated June 5, 1996. Manns instituted an action against Peterson in her individual capacity, and the Leather Shop, alleging employment discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, (Count I), Defamation (Count II), Injurious Falsehood (Count III), and Intentional Infliction of Emotional Distress (Count IV). This Court will grant the defendants’ motion to dismiss for the reasons that follow. Thus the only remaining count will be the employment discrimination count against the Leather Shop (Count I). II. DISCUSSION A. Standards on Motion to Dismiss The court cannot dismiss an action under Federal Rules of Civil Procedure 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims as pled which would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The factual allegations raised in the complaint must be assumed to be true. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969). The complaint should be construed liberally in the plaintiffs favor, giving that party the benefit of all fair inferences which may be drawn from the allegations. Wilson v. Rackmill, 878 F.2d 772, 775 (3d Cir.1989). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court must view all factual allegations in the complaint as true and must construe the complaint liberally. Francis v. Graham Miller (Caribbean) Ltd., 26 V.I. 184 (Terr.Ct.1991). Since a motion" }, { "docid": "8689435", "title": "", "text": "VI and VII); unfair competition (Count VIII); and violations of the Virginia Computer Crimes Act (Count IX). With the exception of Counts II and IX, the claims are asserted against both defendants. Counts II and IX are asserted only against Axceler. The defendants have moved to dismiss the amended complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court held a hearing on the motions on July 25, 2013. III.Standard of Review When deciding a motion to dismiss for failure to state a claim, the court must accept as true all well-pleaded allegations and draw all reasonably factual inferences in the plaintiffs’ favor. Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir.2013). “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 [its] 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citation and quotation marks omitted). To survive dismissal for failure to state a claim, “a complaint must contain -sufficient factual matter, accepted as true, to ‘state a claim for 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 Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In considering a Rule 12(b)(6) motion, the court may properly consider exhibits attached to the complaint in addition to the complaint itself. Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir.1991). IV. Discussion The defendants have moved to dismiss all nine counts set forth in the amended complaint on the ground that, for various reasons, they fail to state a claim upon which relief can" }, { "docid": "22637619", "title": "", "text": "already had ruled, and Judge Smalkin agreed, that a claim of a global action among all of the defendants was not supported by Mylan’s allegations. Perhaps the global conspiracy language which remains in the third version of the complaint was the result of less-than-careful draftsmanship. The language also could be read as a highly simplistic and inartful attempt to provide the court, in so many words, with a general overview to a complex set of circumstances involving numerous defendants. Nevertheless, the complaint also contains numerous factual allegations of separate patterns of racketeering activity committed by various groups of defendants. Although agreeing that the global conspiracy, standing alone, would be insufficient, we are reluctant, at the relatively early Rule 12(b)(6) stage, to affirm the entire dismissal of Mylan’s RICO and common law claims for failure to state a claim on the basis of the misleading additional language concerning joint activity. Accordingly, we reverse the decision to dismiss Counts 1, 2, and 4. We caution, however, that a claim held not dismissible at the Rule 12(b)(6) level must eventually still be proven. I. Standard of Review We review a district court’s dismissal under Rule 12(b)(6) de novo. See, e.g., Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992). In general, a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief. In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff. See, e.g., De Sole v. United States, 947 F.2d 1169, 1171 (4th Cir.1991). II. RICO Claims (Counts 1 and 2) and State-Law Claims of Unfair Competition and Tortious Interference with Business Relations (Count I) The primary problem identified by Judge Smalkin with Mylan’s two RICO counts and its state-law claims essentially boils down to the following allegation appearing in the beginning of Count 1:" }, { "docid": "13160600", "title": "", "text": "argues that merely alleging that “Ewald doing one part,” “Main doing his part,” and “the Bank doing its part” results in the conclusion that “[sjurely this is a combination” contemplated by the civil conspiracy statute. II. STANDARD OF REVIEW “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint,” not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir.1999). In considering a Rule 12(b)(6) motion, a court must accept all allegations in the complaint as true and must draw all reasonable inferences in favor of the plaintiff. See id. at 244; Warner v. Buck Creek Nursery, Inc., 149 F.Supp.2d 246, 254-55 (W.D.Va.2001). Although “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 Atl. Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (alteration in original omitted) (citations omitted) (internal quotation marks omitted). Instead, “factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (citation omitted) (footnote call number omitted). Rule 12(b)(6) does “not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face”; plaintiffs must “nudge[ ] their claims across the line from conceivable to plausible” or “their complaint must be dismissed.” Id. at 1974. As the Fourth Circuit has held, a plaintiff “must sufficiently allege facts to allow the Court to infer that all elements of each of his causes of action exist,” see Jordan v. Alternative Res. Corp., 458 F.3d 332, 344-45 (4th Cir.2006), reh’g en banc denied, 467 F.3d 378 (4th Cir.2006),- cert. denied, — U.S.-, 127 S.Ct. 2036, 167 L.Ed.2d 804 (2007)." }, { "docid": "12022697", "title": "", "text": "act for a class of similarly situated Honda Odyssey owners whose vehicles were also equipped with the PAX System tires. Honda removed the case to the United States District Court for the District of Maryland (Southern Division) pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d). Both Honda and Michelin filed motions to dismiss all counts pursuant to Fed.R.Civ.P. 12(b)(6) for Counts I — III and Fed.R.CivP. 9(b) for Count IV. After briefing, the district court held a hearing on these motions on June 11, 2007. At the conclusion of the hearing, the court granted both motions to dismiss all counts, stating its reasoning in an oral opinion delivered from the bench. Counts I — III were dismissed with prejudice, while Count IV was dismissed without prejudice so that Robinson could amend his complaint and refile as to Count IV if he wished. Robinson chose not to do so, and Count IV is not before this court on appeal. On July 5, 2007, final judgment was entered in favor of Honda and Michelin on all counts. This appeal was timely filed on July 10, 2007. II. The standard of review for dismissal pursuant to Rule 12(b)(6) is de novo. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991) (citation omitted). This court will construe factual allegations in the non-moving party’s favor and will treat them as true, but the court is not bound by the complaint’s legal conclusions. Id. To survive a Rule 12(b)(6) motion to dismiss, the facts alleged “must be enough to raise a right to relief above the speculative level” and must provide “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, 1965, 1974, 167 L.Ed.2d 929 (2007). Although the express warranties of Honda and Michelin were not attached to Robinson’s complaint, this court may consider them when reviewing the motion to dismiss because the warranties were integral to and explicitly relied on in the complaint and because Robinson agrees that the warranties provided are authentic. See" }, { "docid": "12022698", "title": "", "text": "and Michelin on all counts. This appeal was timely filed on July 10, 2007. II. The standard of review for dismissal pursuant to Rule 12(b)(6) is de novo. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991) (citation omitted). This court will construe factual allegations in the non-moving party’s favor and will treat them as true, but the court is not bound by the complaint’s legal conclusions. Id. To survive a Rule 12(b)(6) motion to dismiss, the facts alleged “must be enough to raise a right to relief above the speculative level” and must provide “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, 1965, 1974, 167 L.Ed.2d 929 (2007). Although the express warranties of Honda and Michelin were not attached to Robinson’s complaint, this court may consider them when reviewing the motion to dismiss because the warranties were integral to and explicitly relied on in the complaint and because Robinson agrees that the warranties provided are authentic. See Phillips v. LCI Int’l, Inc., 190 F.3d 609, 618 (4th Cir.1999). These warranties were also relied upon by the district court in rendering its decision. III. Count One (Breach of Express Warranties) To state a claim for breach of express warranty under Maryland law, a plaintiff must allege “1) a warranty existed; 2) the product did not conform to the warranty; and 3) the breach proximately caused the injury or damage.” SpinCycle, Inc. v. Burcin Kalender, 186 F.Supp.2d 585, 589 (D.Md.2002) (citations omitted). A. The district court ruled correctly in dismissing the claims against Honda for breach of express warranty. Robinson’s claim fails to allege that his minivan did not conform to the warranty. By its own terms, the warranty clearly, unambiguously, and repeatedly excludes tires from the warranty coverage. In the “A Quick Reference to Warranty Coverages” section at the beginning of the warranty booklet, under the heading “New Vehicle Limited Warranty,” the text states, “Every new Honda is covered, except for tires, for 3 years or 36,000 miles. The tires are warranted separately.”" }, { "docid": "14179343", "title": "", "text": "the Plaintiffs’] alleged overcharging for particular services.” See Complaints at ¶ 19. Plaintiffs’ cause of action for unfair trade practices is based upon MRS “unfairly attempting] to reduce the Plaintiffs’] bill by offering to pay only a portion of the bill[s] without offering an adequate explanation for the reduction in charges.” See Complaints at ¶ 24. Plaintiffs assert that MRS is guilty of bad faith refusal to pay claims because MRS “refused payment in full of [Plaintiffs’] claims on behalf of their clients and refused to give Plaintiff more than a cursory explanation as to why full coverage was denied” and that when “Plaintiffs] attempted to negotiate with [MRS] regarding these claims [MRS] refused to negotiate in good faith giving no adequate reason why the claims were reduced.” See Complaints at ¶¶ 29-30. The improper claims practice cause of action alleges no new factual allegations. See Complaints at ¶¶ 35-37. II. MOTION TO DISMISS STANDARD [1-5] A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992). When reviewing a motion to dismiss it is inappropriate for a court to rely upon facts outside of the complaint. The court’s inquiry is limited to whether Plaintiffs’ allegations constitute ‘“a short and plain statement of the claim showing that the pleader is entitled to relief.’ ” Bolding v. Holshouser, 575 F.2d 461, 464 (4th Cir.) (quoting Fed.R.Civ.P. 8(a)(2)), cert. denied, 439 U.S. 837, 99 S.Ct. 121, 58 L.Ed.2d 133 (1978). In deciding a Rule 12(b)(6) motion to dismiss a court should not dismiss a complaint “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); Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 93, 126 L.Ed.2d 60 (1993). The court must view the facts in the" }, { "docid": "2593754", "title": "", "text": "Federal Rule of Civil Procedure 12(b)(6), the Court will apply the familiar standards in considering the allegations in the Third Amended Complaint. A motion to dismiss tests the sufficiency of a complaint; it does not resolve contested factual issues. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992). In considering the motion, a court must accept all factual allegations in the complaint as true and must draw all reasonable inferences in favor of the plaintiff. See Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999); Warner v. Buck Creek Nursery, Inc., 149 F.Supp.2d 246, 254-55 (W.D.Va.2001). To survive a motion to dismiss, a complaint must contain sufficient factual matter which, accepted as true, “state[s] a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 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)). The plausibility standard requires a plaintiff to demonstrate more than “a sheer possibility that a defendant has acted unlawfully.” Id. It requires the plaintiff to articulate facts that, when accepted as true, “show” that the plaintiff has stated a claim entitling him to relief, that is, the “plausibility of ‘entitlement to relief.’ ” Francis v. Giacometti 588 F.3d 186, 193 (4th Cir.2009) (quoting Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Thus, the “[factual allegations must be enough to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 545, 127 S.Ct. 1955, to one that is “plausible on its face,” id. at 570, 127 S.Ct. 1955, rather than merely “conceivable.” Id. Although the Court must accept as true all well-pleaded factual allegations, the same is not true for legal conclusions. “Threadbare recitals of the elements of a cause of action, supported by mere conelusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. In considering such a motion, a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Matkari, 7 F.3d" }, { "docid": "1551397", "title": "", "text": "June 30, 1998, the end of the Extended Benefits coverage period. Mrs. Tuohig died as a result of breast cancer on December 17, 1998. Mr. Tuohig and the Estate of Marilyn Tuohig filed a Complaint against the defendant on March 1, 2000 for various state and federal law violations arising out of the defendant’s refusal to reimburse medical expenses incurred from December 1, 1997 through June 30, 1998. On April 14, 2000, the defendant filed the pending motion to dismiss. In addition to their opposition, the plaintiffs seek an extension of time to file an Amended Complaint which will correctly state the name of the defendant and include the name of the executor or administrator of Mrs. Tuohig’s estate. II. Discussion A. Applicable Law A complaint should not be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6) 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.” Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir.1987), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). To prevail against a motion to dismiss, a plaintiff must demonstrate that he has “set forth in [the] complaint factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable theory.” Roth v. United States, 952 F.2d 611, 613 (1st Cir.1991) (internal quotation marks and citations omitted). In considering such a motion, the court must take facts alleged in the complaint as true, and “draw all inferences reasonably extractable from the pleaded facts in the manner most congenial to the plaintiffs theory.” Roth, 952 F.2d at 613. The plaintiffs agree that Counts Two, Three and Eight through Thirteen are preempted. Therefore, this memorandum addresses only Counts Four through Seven and Fourteen through Sixteen. B. The Estate’s Claims for Declaratory Judgment and Injunctive Relief (Counts Four through Seven) Counts Four and Six seek a declaratory judgment and declaratory relief under ERISA, 29 U.S.C. § 1132(a)(1)(B) and Fed.R.Civ.P. 57, respectively. Counts Five and Seven seek injunctive" }, { "docid": "6118275", "title": "", "text": "dismiss plaintiff’s amended complaint on the ground that plaintiff has failed to specifically tie her to the unlawful acts referred to in the amended complaint. Alternatively, defendant Osmer moves for the dismissal of Counts II and IV for the same reasons asserted by defendant ABC. This Court finds defendant Osmer’s argument regarding plaintiff’s failure to give adequate notice unpersuasive. A Rule 12(b)(6) motion to dismiss must be considered in conjunction with Rule 8(a) which states that federal pleading merely requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a) Fed.R.Civ.P. In explaining the well-established rule regarding motions to dismiss, the Supreme Court in McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980), stated that a claim “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.’ ” Id. at 246, 100 S.Ct. at 511 (quoting from Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). See also Wolman v. Tose, 467 F.2d 29, 33 n.5 (4th Cir. 1972); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216 (1969). Moreover, in ruling on a motion to dismiss, the court must construe the pleadings liberally in favor of the claimant and disregard contrary allegations by the moving party. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); A. S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir. 1969). Considering these rules, and keeping in mind that the issue is not whether the plaintiff is likely to prevail on the merits, but whether he is entitled to submit evidence to support his claim, the Court is of the opinion that the amended complaint provides the defendant with sufficient notice. With respect to defendant Osmer’s request to dismiss Counts II and IV, this Court grants defendant’s motion as to Count II and denies it with regard to Count" }, { "docid": "13590069", "title": "", "text": "Plaintiff did not subsequently move for leave to amend. Defendant’s motion to dismiss is therefore ripe for the Court’s decision. II. STANDARD OF REVIEW A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quotation marks omitted). While detailed factual allegations are not necessary, plaintiff must plead enough facts to “raise a right to relief above the speculative level.” Id. When ruling on a Rule 12(b)(6) motion, the Court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002). The Court must construe the complaint liberally in plaintiffs favor and grant plaintiff the benefit of all reasonable inferences deriving from the complaint. Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, the Court must not accept plaintiffs inferences that are “unsupported by the facts set out in the complaint.” Id. “[Ojnly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Recitals of “the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. III. DISCUSSION Plaintiff concedes that Count Two of his Complaint should be dismissed. See Opp. at 9. Accordingly, all that remains before the Court is defendant’s argument that Count Three, plaintiffs hostile-work-environment claim, should be dismissed for failure to exhaust administrative remedies and failure to state a claim. Because {plaintiff failed to state a claim, the Court need not address whether he exhausted his administrative remedies. To bring an actionable hostile-work-environment" }, { "docid": "17083342", "title": "", "text": "Williamson asserts antitrust and various other claims arising from Defendants’ alleged price fixing in connection with the sale of American Mastiff puppies. According to Plaintiff Williamson, his refusal to participate in the price fixing scheme has resulted in his exclusion from the AMBC and his inability to purchase new breeding stock. More particularly, Plaintiff Williamson asserts claims under § 1 of the Sherman Act (Counts One, Three, Four, and Five), § 2 of the Sherman Act (Count Two), defamation and libel/slander per se (Counts Six and Seven), fraud (Count Eight), intentional interference with a business relationship (Count Nine), conspiracy as to Counts One through Nine (Count Ten), and seeks a declaration that Defendants violated the Sherman Act (Count Eleven). The Antitrust Action Defendants, which include the AMBC and its member breeders, have moved to dismiss the First Amended Complaint on grounds that Plaintiff Williamson has failed to plead facts sufficient to support his claims. This motion is now before the Court for disposition. II. Rule 12(b)(6) Standard A 12(b)(6) motion to dismiss is directed solely to the complaint and any exhibits attached to it. Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir.1983). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires the complaint to contain a “short and plain statement of the claim showing that the pleader is entitled to relief[.]” A court, in considering a 12(b)(6) motion to dismiss, must “construe the complaint in the light most favorable to the plaintiff,” accepting as true all the plaintiffs factual allegations. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.2009). To survive dismissal pursuant to Rule 12(b)(6), however, a claim must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The United States Supreme Court, in Ashcroft v. Iqbal, — U.S.-, 129- S.Ct. 1937, 173 L.Ed.2d 868 (2009), clarified Twombly’s plausibility standard: Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of" }, { "docid": "13109998", "title": "", "text": "S.Ct. 2068 (“when the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished”). In this case, the CBA contains detailed requirements for an employee to be eligible for vacation benefits. (1989 CBA, at Article VI.) There is a dispute as to whether Salamea was entitled to the ten vacation days taken, and whether she followed the appropriate procedures for scheduling her vacation to make her eligible for vacation pay. The resolution of these disputes will require interpretation of the CBA, and thus, Count Three is also preempted by 301, providing another basis for removal. The plaintiffs motion to remand is denied. III. Defendants Macy’s and Federated move to dismiss the three counts against them-— Counts One, Two, and Three — pursuant to Fed.R.Civ.P. 12(b)(6) because each cause of action fails to state a claim upon which relief can be granted. On a motion to dismiss, the allegations in the complaint are accepted as true. See Grandon v. Merrill Lynch Co., 147 F.3d 184, 188 (2d Cir.1998). The Court’s function is “not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Therefore, the defendants’ motion to dismiss for failure to state a claim should only be granted if it appears that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). In deciding the motion, the Court may consider documents that are referenced in the Complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); Brass v. Am. Film Techs., Inc., 987 F.2d" }, { "docid": "7906897", "title": "", "text": "and negligent misrepresentation (Count III). In their Amended Complaint, Plaintiffs made some changes to those three claims, and added a claim for unjust enrichment (Count IV)- Defendants Cheng Senior and Cheng Junior have moved to dismiss all counts on the ground that each count fails to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Defendant T.C. Corp. has moved to dismiss all claims against it on the ground that this Court does not have personal jurisdiction over the corporation. II. APPLICABLE LEGAL STANDARDS In deciding a motion to dismiss for lack of personal jurisdiction pursuant -to Fed. R.Civ.P. 12(b)(2), a court may rely on the allegations in the complaint and affidavits submitted by the parties. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). When, as here, the district court decides the issue of personal jurisdiction -without an evidentiary hearing, the plaintiff bears the burden of proving a prima facie case of personal jurisdiction. Id. The court, in deciding whether a plaintiff has met this burden, must “construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction.” Id. A motion to dismiss pursuant to Rule 12(b)(6) of the.Federal Rules of Civil Procedure 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, 365 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering such a motion, the court is required to accept as true all well-pled allegations in the Complaint, and to construe the facts and reasonable inferences from those facts in the light most favorable to the plaintiff. See, Ibarra v. United States, 120 F.3d 472, 473 (4th Cir.1997). “To survive a motion to dismiss, Plaintiff[s] must have alleged facts that show that they are entitled to relief on their substantive causes of action.” In re Criimi Mae, Inc. Securities Litigation, 94 F.Supp.2d 652, 656 (D.Md.2000). III. DISCUSSION 1. Personal Jurisdiction over T.C. Corp." }, { "docid": "13644949", "title": "", "text": "dismiss for failure to state a claim under Rule 12(b)(6), the' allegations of the complaint and all reasonable inferences from the facts alleged must be taken as true. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Brown v. Ivie, 661 F.2d 62, 66 (5th Cir.1981). A complaint must not be dismissed unless it is shown that the “[pjlaintiff 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, 101-102, 2 L.Ed.2d 80 (1957). Thus, the movant sustains a very high burden in cases under Rule 12(b)(6). III. MOTION TO DISMISS COUNT THREE Count three of the complaint, as amended, seeks damages for an alleged violation of section 17(a) of the Securities Act. Both the Cayman defendants and Mr. Echols have moved to dismiss on the ground that no implied private right of action exists under section 17(a). This Court has consistently held that the defendants’ position is correct. In re North American Acceptance Corp. Securities Cases, 513 F.Supp. 608, 618 (N.D.Ga.1981); Gunter v. Hutcheson, 433 F.Supp. 42, 44- 47 (N.D.Ga.1977), reh’g granted, 492 F.Supp. 546 (1980). The Eleventh Circuit Court of Appeals has not disagreed. Merrill Lynch, Pierce, Fenner & Smith v. Haydu, 675 F.2d 1169, 1172 & n. 1 (11th Cir.1982). Accordingly, count three of the plaintiffs complaint, as amended, must be dismissed on this ground. IV. MR. ECHOLS’ MOTION TO DISMISS A. Rule 9(b): Mr. Echols contends that the claims of the complaint against him fall short of the Rule 9(b) requirement that “in all averments of fraud ..., the circumstances constituting fraud ... shall be stated with particularity,” and therefore the complaint should be dismissed. For reasons discussed in full below, the Court holds that certain of the plaintiff’s claims must be dismissed against Mr. Echols. In the present dispute, the plaintiff alleges that Mr. Echols is responsible as director and controlling person for the actions of “Defendant REB.” Thus, the relevant question is whether the plaintiff has adequately pleaded the elements and" }, { "docid": "22637620", "title": "", "text": "must eventually still be proven. I. Standard of Review We review a district court’s dismissal under Rule 12(b)(6) de novo. See, e.g., Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992). In general, a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief. In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff. See, e.g., De Sole v. United States, 947 F.2d 1169, 1171 (4th Cir.1991). II. RICO Claims (Counts 1 and 2) and State-Law Claims of Unfair Competition and Tortious Interference with Business Relations (Count I) The primary problem identified by Judge Smalkin with Mylan’s two RICO counts and its state-law claims essentially boils down to the following allegation appearing in the beginning of Count 1: The racketeering acts committed by each of the defendants identified below were related to one another and formed a pattern of racketeering activity in that they were in furtherance of the common goals of profiting illegally at Mylan’s expense and were focused upon undermining the integrity of the FDA approval process in order to improperly obtain economic advantage. Third Am.Compl. ¶ 114. That statement, or more accurately, that “theme,” was either repeated or incorporated by reference into Counts 2 and 4. The district court and the defendants have convincingly demonstrated that not one of the extensive allegations described in Mylan’s complaint supports any claim that all of the defendants acted together, in a single, global pattern of racketeering activity, driven by the united goal of profiting illegally at Mylan’s expense. In his opinion dismissing substantial portions of Mylan’s First Amended Complaint, Judge Ramsey specifically rejected Mylan’s theory of a “global conspiracy” among the various defendants. Mylan, he concluded, had failed to present any sufficient allegations to support such a claim. Mylan, 770 F.Supp. at 1066-68," } ]

[ { "docid": "18744471", "title": "", "text": "the amounts then due under the contract, including attorney’s fees which the Bank sought to impress on the debtor. Furthermore, the Bank’s failure to act after having knowledge of the expiration of the insurance for such a length of time indicates it may be guilty of laches. See Mogavero v. McLucas, 543 F.2d 1081, 1083 (4th Cir.1976) (elements of laches); Olympia Werke Aktiengesellschaft v. General Electric, 545 F.Supp. 598, 611-12 (W.D.Va.1982), aff'd 712 F.2d 74 (4th Cir.1983); Moore v. Exxon Transp. Co., 502 F.Supp. 583, 586 (E.D.Ga.1980) (prejudice inferred by lack of diligence). Under the circumstances, this Court cannot find Cassell’s failure to maintain insurance on the automobile a material breach of the contract. Thus, the sole issue remaining is the right of a secured creditor to repossess property that has been abandoned by the trustee and is now property of the debtor subsequent to the granting of a discharge. It has been held that where the filing of the bankruptcy petition was the sole event of default the debtor was entitled to possession of the automobile. In re Brock, 23 B.R. 998, 1004 (Bankr.D.C.1982). The Brock decision, while not controlling, nevertheless is persuasive. The factual situations in Brock and in the instant case have many similarities. In both instances, the debtors failed to redeem automobiles and the bank repossessed the vehicles in reliance on the acceleration of payments clauses. In determining the “default-on-bankruptcy” clause unenforceable, the Brock court, while noting that the protections of Section 362(a)(5) expired with the granting of the discharge, nevertheless held that the debtor was still entitled to the protection “envisioned within the effects of discharge as set forth under § 524(a) of the Bankruptcy Code” setting forth the principal that the “effect of discharge under § 524(a)” should not alter the debtors’ rights under the original obligation, absent any actual default and further that “the secured creditor stands basically in no worse situation than he was in prior to the filing of the petition in bankruptcy so long as the debtor continues to satisfy fully his obligations under the security agreement.” Id. at 1002-04." } ]

[ { "docid": "23451687", "title": "", "text": "Fed. Credit Union v. Parker, 525 U.S. 1041, 119 S.Ct. 592, 142 L.Ed.2d 535 (1998); In re Boodrow, 126 F.3d 43 (2d Cir.1997), cert. denied, 522 U.S. 1117, 118 S.Ct. 1055, 140 L.Ed.2d 118 (1998); Lowry Fed. Credit Union v. West, 882 F.2d 1543 (10th Cir.1989). These courts, like the Belanger courts, emphasize that construing the statute to limit debtors’ options to only those listed “would severely impede the debtor’s fresh start.” Belanger, 118 B.R. at 370, aff'd, 962 F.2d 345; see also, e.g., Boodrow, 126 F.3d at 51 (observing that the “policy embodied in the Code that a debtor discharged from bankruptcy should receive a ‘fresh start’ has been emphasized time and again by the Supreme Court and [the Second Circuit]”). Providing a fresh start for honest debtors is one of the “primary purposes” of the bankruptcy law, so a limiting interpretation at odds with that purpose “should not be adopted unless it is clearly required by the statute.” Belanger, 118 B.R. at 370, aff'd, 962 F.2d 345. The courts that disagree hold generally that the statute offers three options only, to the exclusion of others. See In re Burr, 160 F.3d 843 (1st Cir.1998); In re Taylor, 3 F.3d 1512 (11th Cir.1993); Matter of Edwards, 901 F.2d 1383 (7th Cir.1990); see also In re Bell, 700 F.2d 1053 (6th Cir.1983). The Belanger court discussed both Edwards and the case on which it relied, In re Bell, which held that “a clause in the loan papers making a debtor in default upon filing for bankruptcy becomes effective when the trustee abandons the collateral.” Belanger, 962 F.2d at 347 (construing Bell, 700 F.2d at 1056). At that point, the Sixth Circuit explained, the debtor was required either to repay the entire indebtedness or to reaffirm; otherwise the creditor could repossess the collateral. The Belanger court considered these arguments but disagreed. It pointed out that this reasoning fundamentally conflicts with Fourth Circuit precedent, established in Riggs Nat’l Bank v. Perry, to the effect that “a default-on-filing clause in an installment loan contract was unenforceable as a matter of law.” Belanger, 962" }, { "docid": "6460655", "title": "", "text": "rights to repossess the Dodge Van. In re Carey, 51 B.R. 294, 295 (Bankr.D.D.C.1985). In re Brock, supra at 1003. A discharge granted to these Debtors will extinguish any personal liability on the Contract to the Creditor, but the Creditor’s lien, if unaltered, will survive the bankruptcy and the Creditor can proceed with an in rem action against the collateral. Chandler Bank of Lyons v. Ray, 804 F.2d 577 (10th Cir.1986); In re Lawrence, supra at 2; In re Cassell, supra at 741; In re Brock, supra at 1002; In re Rosenow, 22 B.R. 99, 100 (Bankr.W.D.Wash. 1982). The Creditor’s right to repossession upon a future default and to exercise its rights solely against the collateral is the same right afforded any secured creditor in any bankruptcy case. See, In re Brock, supra at 1003-1004. Preventing a creditor from imposing personal liability and perhaps seeking a personal judgment for any post-petition default, does indeed put the creditor into a weaker posture than it was pre-petition. However, this is an inherent risk of doing business, and a creditor can compensate for this business risk with higher interest rates, increased payments, or by requiring larger down payments. Riggs v. Perry, supra at 985; In re Winters, supra at 147; In re Cassell, supra at 741; In re Brock, supra at 1003. In the within case, as long as the Debtors perform according to the Contract, the Creditor nonetheless will receive the benefit of its bargain. See, In re Ballance, supra at 91 and In re Rosenow, supra at 100. The Creditor’s principal authority and the basis of its position is the Bell opinion. The Bell opinion has been criticized in holding that the creditor can force the debtor to redeem the collateral or reaffirm the debt, or the creditor gets immediate possession of abandoned collateral despite no default in payments on the obligation. A majority of the courts hold to the contrary. See, Riggs v. Perry, supra; In re Berenguer, supra; In re Winters, supra; In re Bal-lance, supra; In re Brock, supra; In re Rosenow, supra. This Court is more' persuaded" }, { "docid": "10177338", "title": "", "text": "is reduced. Lowry reasons that since personal liability has been removed, debtors have no incentive to adequately maintain the vehicle, and Lowry’s ability to realize on the collateral is therefore reduced. In Riggs National Bank of Washington, D.C. v. Perry, 729 F.2d 982 (4th Cir.1984), the court found that filing of a Chapter 7 case alone did not put the debtor in default of a security agreement for an automobile loan. Id., at 984-85. The court also held that loss of personal liability did not entitle the creditor to relief from stay. Id., at 985. The court stated as follows: Nevertheless, appellant’s position is no more fragile, due to the Chapter 7 filing alone, than that of any lender under an installment sales contract. We can muster even less sympathy for institutional lenders; they are fully cognizant of the risks inherent in the making of loans, default among them, and receive substantial interest payments to help offset those risks. This Court declines to exact additional obligations from debtors who merely file under Chapter 7 while they maintain their fiscal responsibilities. Id. Although the court’s holding involved an application for pre-discharge relief from stay, the court’s reasoning indicates that loss of personal liability in and of itself does not create default under a security agreement. See also, In re Rosenow, 22 B.R. 99 (Bankr.W.D.Wash.1982); In re Berenguer, 77 B.R. 959, 960 (Bankr.S.D.Fla.1987); In re Cassell, 41 B.R. 737 (Bankr.E.D.Va.1984). Here, the bankruptcy court found that debtor was not in default of the security agreement. This court finds that appellants have failed to present evidence to the bankruptcy court which demonstrates default under the security agreement. There was no evidence before the bankruptcy court that debtors had actually failed to maintain the vehicle, and it would require speculation to conclude that the removal of personal liability alone would result in failure to maintain the vehicle. Lowry also relies on In re Bell, 700 F.2d 1053 (6th Cir.1983), in arguing that debtors are required to reaffirm the debt or redeem the collateral. There, the court stated that “it has been recognized that a" }, { "docid": "18744458", "title": "", "text": "fees. By written and oral argument, the Bank’s position is as follows. Because of debtor’s being discharged, the automatic stay imposed by 11 U.S.C. § 362(a) has terminated. As a result, the repossession of the automobile pursuant to the Bank’s rights under the sales contract was not in violation of the automatic stay. The Bank maintains that its act of repossession was permissible under the sales contract because of three separate breaches of the agreement committed by debtor. Initially, under the sales agreement, the filing of a case in bankruptcy accelerated all amounts due. Debtor did not make those payments, defaulting under the contract. Secondly, the Bank argues that a discharge of debtor extinguished his personal liability. Thus, the Bank’s sole remedy was against the collateral, a highly de-preciable asset, which the Bank determined to repossess in order to protect itself. Finally, by failing to maintain physical damage insurance, the debtor was in default of the sales agreement. Citing a recent decision of the Sixth Circuit Court of Appeals, the Bank contends that in order to maintain possession of the automobile after filing bankruptcy, the debtor had to either reaffirm the debt with the Bank or redeem the vehicle in a lump sum payment prior to the entry of the discharge order. In re Bell, 700 F.2d 1053, 1056-57 (6th Cir. 1983). The Bell court premised its decision by upholding the validity of a “due-on-bankruptcy” clause similar to the one subjudice. Id. at 1058. The appellate court went on to hold that redemption and reaffirmation are the exclusive methods by which a debtor can retain possession of secured collateral. Id. Riggs maintains that by failing to proceed by one of the two above methods before the order of discharge was entered, Cassell may not redeem the subject vehicle post-discharge. Section 722 permits a debt- or to redeem tangible personal property from a lien securing a dischargeable consumer debt. 11 U.S.C. § 722. Riggs argues that because Cassell has been granted a discharge, the Bank’s lien no longer secured a “dischargeable consumer debt,” and the redemption remedy is not appropriate. Additionally," }, { "docid": "18744466", "title": "", "text": "v. Perry, 729 F.2d 982, 984 (4th Cir.1984); In re Berry, 11 B.R. 886, 889 (Bankr.W.D.Pa.1981); In re Cruseturner, 8 B.R. 581, 592 (Bankr.D.Utah 1981). In this case, of course, Riggs did not repossess the automobile until after Cassell received his discharge. Riggs bases its motion for reconsideration on three separate grounds of default of the sales contract which it maintains occurred. The first instance of default is based upon the existence of an acceleration clause triggered by the debt- or’s filing a petition in bankruptcy. Recently, the Fourth Circuit Court of Appeals has held that such “default-upon-filing” clauses are unenforceable as a matter of law. Riggs National Bank of Washington, D.C. v. Perry, 729 F.2d at 984—85; see, e.g., Matter of Rose, 21 B.R. 272, 275-78 (Bankr.D.N.J.1982). Thus, such a clause may not serve as grounds for alleging default. Furthermore, Riggs maintains that the granting of a discharge which would eliminate Cassell’s personal liability vitiates the sales contract. The Perry court addressed this point as well. 729 F.2d at 985. Initially, the appellate court noted that although a debtor receives his discharge, the Bank retains its lien against the vehicle. Id.; see, e.g., Matter of Cassi, 24 B.R. 619, 626 (Bankr.N.D.Ind.1982); In re Rosenow, 22 B.R. 99, 100 (Bankr.W.D.Wash.1982); In re Weathers, 15 B.R. 945, 951-52 (Bankr.D.Kan.1981). The elimination of debtor’s personal liability results in the necessity of the Bank looking entirely to the collateral for security. The Perry court noted, however, that nothing inherent in the bankruptcy filing makes the Bank’s position any more tenuous than that of any creditor under an installment sales contract. 729 F.2d at 985. The court refused to exact additional obligations from a debtor who is current on his financial responsibilities merely because he files a liquidation proceeding. Id. The Fourth Circuit concluded by stating that banks are aware of the risks in making loans and receive “substantial interest payments” to offset those risks. Id. As a result, the Perry decision eliminates the Bank’s second ground for alleging a default of the sales contract. The final ground of default alleged by Riggs is" }, { "docid": "6460653", "title": "", "text": "by the Debtors does not, as a matter of law, constitute a default under the bankruptcy default clause, or “i-pso facto ” clause, of the Contract. Second, this Court concludes that the Debtors need not redeem the collateral nor reaffirm the debt in order to keep the collateral. Finally, this Court concludes that relief from stay is not justified and shall not be granted. This Court’s reasoning for the above conclusions is set forth below. A creditor cannot force a default upon a debtor by the use of the ipso facto clause of a contract solely because of a bankruptcy filing. In several sections of the Bankruptcy Code, such as Sections 363(Z), 365(e), and 541(c), Congress has attempted to do away with such bankruptcy clauses. “It is clear from the legislative history and from the express intention of Congress to protect the ‘fresh start of debtors’ that the invocation of insolvency statutes is not favored.” In re Brock, 23 B.R. 998, 1002 (Bankr.D.C.1982). See, Riggs National Bank of Washington v. Perry, 729 F.2d 982, 984-985 (4th Cir.1984); In re Winters, 69 B.R. 145, 146-147 (Bankr.D.Or.1986); In re Cassell, 41 B.R. 737, 740-741 (Bankr.E.D.Va.1984); In re Ballance, 33 B.R. 89, 91 (Bankr.E.D.Va.1983); Matter of Rose, 21 B.R. 272, 276-277 (Bankr.D.N.J.1982); In re Horton, 15 B.R. 403, 405 (Bankr.E.D.Va.1981); In re Farmer, 13 B.R. 319, 320 (Bankr.M.D.Fla.1981). The Creditor’s ipso facto clause in the Contract thwarts the Debtors’ fresh start provided under the Code and imposes a penalty upon the Debtors for exercising their constitutional right to file bankruptcy. In re Winters, supra at 146. Since this ipso facto clause is not enforceable, it cannot be used to constitute a default on the Contract by the Debtors. Therefore, the Debtors are not in default and the Creditor cannot enforce its rights under the default portion of the Contract which permits possession of the security. In re Berenguer, 77 B.R. 959, 960-961 (Bankr.S.D.Fla.1987). See, In re Lawrence, 54 B.R. 1, 2 (Bankr.D.S.C.1984); In re Brock, supra at 1004. Should the Debtors default in the future, then the Creditor would well be within its" }, { "docid": "10229142", "title": "", "text": "confronted with a creditor unwilling to execute a renegotiation may retain the secured collateral by redeeming it for its fair market value, which value may be substantially less than the contractual indebtedness. However, § 524(c) facially contemplates that the creditor, for whatever reason, may reject any and all tendered reaffirmation offers; § 524(c) envisions execution of an “agreement” which, by definition, is a voluntary undertaking. ... Gen. Motors Acceptance Corp. v. Bell (In re Bell), 700 F.2d 1053, 1056 (6th Cir.1983) (citation omitted). The debtors in the case sub judice have neither sought to redeem the 1983 Toyota from the lien of the Bank nor have they sought to negotiate a reaffirmation of the terms of the Agreement. Debtors instead posit that they are not required to redeem the Toyota or reaffirm notwith standing that the indebtedness secured by the Toyota will be discharged and the stay under § 362(a)(5) terminated. Debtors contend they are entitled to remain in possession of the Toyota so long as they continue to make their $137.45 monthly installments in accordance with the payment terms of the October 18, 1985, Agreement. The court is urged by these debtors to accept the same argument advanced before the Sixth Circuit in Bell, supra: that their right to continued possession of the 1983 Toyota emanates from the Agreement and that they enjoy the same rights after abandonment as before the filing of their bankruptcy petition, including the right to continue monthly payments so long as no default intervenes. In response to this argument, the Bell court, quoting with approval In re Cruseturner, 8 B.R. 581 (Bankr.D.Utah 1981), stated: [I]t has been recognized that a return of abandoned property to the party with the primary possessory interest (usually the debtor) merely provides that debtor with time to enforce his right to redeem the property under § 722 or to seek a reaffirmation of the agreement under § 524(c). The automatic stay of 11 U.S.C. § 362(a)(5) continues in effect, and prevents repossession by the creditor until the case is closed, dismissed, or discharge is granted or denied pursuant to" }, { "docid": "6460652", "title": "", "text": "of the United States shall be observed and used with alterations as may be appropriate. Official Form No. 8A. “Chapter 7 Individual Debtor’s Statement of Intention,” provides for identification of property to be retained by the debtor and lists three categories. These categories are: (1) “the debt will be reaffirmed pursuant to Section 524(c),” (2) “the property is claimed as exempt and will be redeemed pursuant to Section 722,” and (3) “the creditor’s lien will be avoided pursuant to Section 522(f) and the property will be claimed as exempt.” The Creditor contends that upon review of the Form, the drafters intended that the terms of Section 521(2), with respect to redemption or reaffirmation, be mandatory. The Debtors, on the other hand, allege that because they are current in their payments, they are not in default on their Contract and should be allowed to continue to make payments without being forced to either redeem the collateral or reaffirm the debt. CONCLUSIONS OF LAW AND OPINION First, this Court concludes that the filing of a bankruptcy Petition by the Debtors does not, as a matter of law, constitute a default under the bankruptcy default clause, or “i-pso facto ” clause, of the Contract. Second, this Court concludes that the Debtors need not redeem the collateral nor reaffirm the debt in order to keep the collateral. Finally, this Court concludes that relief from stay is not justified and shall not be granted. This Court’s reasoning for the above conclusions is set forth below. A creditor cannot force a default upon a debtor by the use of the ipso facto clause of a contract solely because of a bankruptcy filing. In several sections of the Bankruptcy Code, such as Sections 363(Z), 365(e), and 541(c), Congress has attempted to do away with such bankruptcy clauses. “It is clear from the legislative history and from the express intention of Congress to protect the ‘fresh start of debtors’ that the invocation of insolvency statutes is not favored.” In re Brock, 23 B.R. 998, 1002 (Bankr.D.C.1982). See, Riggs National Bank of Washington v. Perry, 729 F.2d 982, 984-985" }, { "docid": "6460654", "title": "", "text": "(4th Cir.1984); In re Winters, 69 B.R. 145, 146-147 (Bankr.D.Or.1986); In re Cassell, 41 B.R. 737, 740-741 (Bankr.E.D.Va.1984); In re Ballance, 33 B.R. 89, 91 (Bankr.E.D.Va.1983); Matter of Rose, 21 B.R. 272, 276-277 (Bankr.D.N.J.1982); In re Horton, 15 B.R. 403, 405 (Bankr.E.D.Va.1981); In re Farmer, 13 B.R. 319, 320 (Bankr.M.D.Fla.1981). The Creditor’s ipso facto clause in the Contract thwarts the Debtors’ fresh start provided under the Code and imposes a penalty upon the Debtors for exercising their constitutional right to file bankruptcy. In re Winters, supra at 146. Since this ipso facto clause is not enforceable, it cannot be used to constitute a default on the Contract by the Debtors. Therefore, the Debtors are not in default and the Creditor cannot enforce its rights under the default portion of the Contract which permits possession of the security. In re Berenguer, 77 B.R. 959, 960-961 (Bankr.S.D.Fla.1987). See, In re Lawrence, 54 B.R. 1, 2 (Bankr.D.S.C.1984); In re Brock, supra at 1004. Should the Debtors default in the future, then the Creditor would well be within its rights to repossess the Dodge Van. In re Carey, 51 B.R. 294, 295 (Bankr.D.D.C.1985). In re Brock, supra at 1003. A discharge granted to these Debtors will extinguish any personal liability on the Contract to the Creditor, but the Creditor’s lien, if unaltered, will survive the bankruptcy and the Creditor can proceed with an in rem action against the collateral. Chandler Bank of Lyons v. Ray, 804 F.2d 577 (10th Cir.1986); In re Lawrence, supra at 2; In re Cassell, supra at 741; In re Brock, supra at 1002; In re Rosenow, 22 B.R. 99, 100 (Bankr.W.D.Wash. 1982). The Creditor’s right to repossession upon a future default and to exercise its rights solely against the collateral is the same right afforded any secured creditor in any bankruptcy case. See, In re Brock, supra at 1003-1004. Preventing a creditor from imposing personal liability and perhaps seeking a personal judgment for any post-petition default, does indeed put the creditor into a weaker posture than it was pre-petition. However, this is an inherent risk of doing business, and" }, { "docid": "18799899", "title": "", "text": "to keep the car and contends he should not have to redeem the vehicle or reaffirm as long as he is current on the obligation. The Law The bank relies upon a case hot off of the advance sheets, G.M.A.C. v. Bell, 700 F.2d 1053 (6th Cir.1988), which, indeed, held a debtor must elect between reaffirmation and redemption. Alas, it is not an enlightened opinion. Really, it does not deal with the redeem or reaffirm or else proposition, but allowed G.M.A.C. to repossess by virtue of a right-to-repossess clause in the security agreement, saying that while there is an invalidation of such clauses pursuant to bankruptcy laws, 11 U.S.C. 541(c)(1), the security agreement clause breathes new life when property is abandoned by the trustee. Utterly ridiculous! A single case is cited in Bell as authority for this: In re Schweitzer, 19 B.R. 860 (Bkrtcy.E.D.N.Y.1982). Interestingly, the Sixth Circuit cited Schweitzer, but Schweitzer cited Bell on the Bankruptcy Court level. There is better law. The Judges for the Bankruptcy Court for Maryland, Mannes, Schneider and Whelan, sat en banc on the issue in In re Perry (Riggs National Bank of Washington, D.C. v. Perry), 25 B.R. 817 (Bkrtcy.MD.1982), aff’d, 29 B.R. 787 (D.C.D.Md.1982), and rendered a well-reasoned decision. In the Perry case the creditor asserted the identical premise as here: redeem or reaffirm, but, absent default, the Court said these were no grounds to lift the stay so that the creditor could pursue a current customer. District Judge Joseph C. Howard reexamined the arguments and affirmed. 29 B.R. at 792. The District Court found that lack of adequate protection is not proved merely by the fact that the vehicle is highly depre-ciable, resulting in potential loss to the creditor in the event of default. The possibilities that the debtor will fail to continue insurance coverage or that discharge will result in the debtor’s personal liability being lost to the creditor do not constitute lack of adequate protection. Finally, the Perry court rejected the idea that when the fair market value of the vehicle is equal to less than the debtor’s total" }, { "docid": "18744465", "title": "", "text": "include the right of redemption under section 722. Under section 541, the subject automobile became property of the bankruptcy, estate upon Cassell’s filing of his petition in bankruptcy. 11 U.S.C. § 541(a)(1). The filing of the petition operated as a stay of “any act to create, perfect, or enforce any lien against property of the estate.” 11 U.S.C. § 362(a)(4). This property, of course, included the subject automobile. Cassell claimed the automobile as exempt. Because no party in interest objected to the exemption, the trustee having abandoned the property, the automobile passed from the estate to the debtor. At that time, the protection of the automatic stay under section 362(a)(4) terminated. 11 U.S.C. § 362(c)(1). The automobile was still protected by the automatic stay, however, under section 362(a)(5) which protects “property of the debtor.” 11 U.S.C. § 362(a)(5). Thus, Riggs would have been prevented from enforcing its lien until such time as the case was closed, the case was dismissed or a discharge was granted. 11 U.S.C. § 362(c)(2). Riggs National Bank of Washington, D.C. v. Perry, 729 F.2d 982, 984 (4th Cir.1984); In re Berry, 11 B.R. 886, 889 (Bankr.W.D.Pa.1981); In re Cruseturner, 8 B.R. 581, 592 (Bankr.D.Utah 1981). In this case, of course, Riggs did not repossess the automobile until after Cassell received his discharge. Riggs bases its motion for reconsideration on three separate grounds of default of the sales contract which it maintains occurred. The first instance of default is based upon the existence of an acceleration clause triggered by the debt- or’s filing a petition in bankruptcy. Recently, the Fourth Circuit Court of Appeals has held that such “default-upon-filing” clauses are unenforceable as a matter of law. Riggs National Bank of Washington, D.C. v. Perry, 729 F.2d at 984—85; see, e.g., Matter of Rose, 21 B.R. 272, 275-78 (Bankr.D.N.J.1982). Thus, such a clause may not serve as grounds for alleging default. Furthermore, Riggs maintains that the granting of a discharge which would eliminate Cassell’s personal liability vitiates the sales contract. The Perry court addressed this point as well. 729 F.2d at 985. Initially, the appellate court" }, { "docid": "23451688", "title": "", "text": "that the statute offers three options only, to the exclusion of others. See In re Burr, 160 F.3d 843 (1st Cir.1998); In re Taylor, 3 F.3d 1512 (11th Cir.1993); Matter of Edwards, 901 F.2d 1383 (7th Cir.1990); see also In re Bell, 700 F.2d 1053 (6th Cir.1983). The Belanger court discussed both Edwards and the case on which it relied, In re Bell, which held that “a clause in the loan papers making a debtor in default upon filing for bankruptcy becomes effective when the trustee abandons the collateral.” Belanger, 962 F.2d at 347 (construing Bell, 700 F.2d at 1056). At that point, the Sixth Circuit explained, the debtor was required either to repay the entire indebtedness or to reaffirm; otherwise the creditor could repossess the collateral. The Belanger court considered these arguments but disagreed. It pointed out that this reasoning fundamentally conflicts with Fourth Circuit precedent, established in Riggs Nat’l Bank v. Perry, to the effect that “a default-on-filing clause in an installment loan contract was unenforceable as a matter of law.” Belanger, 962 F.2d at 348 (construing Riggs Nat’l Bank v. Perry, 729 F.2d 982, 984-85 (4th Cir.1984)). Pre-BAPCPA subsection 521(2)(B) provided that “within forty-five days after the filing of a notice of intent under this section, or within such additional time as the court, for cause, within such forty-five day period fixes, the debtor shall perform his intention with respect to such property, as specified by subparagraph (A) of this paragraph .... ” Pre-BAPCPA, this deadline was enforced by the trustee pursuant to 11 U.S.C. § 704(3), which provided that the trustee shall “ensure that the debtor shall perform his intention as specified in section 521(2)(B) of this title.” 11 U.S.C. § 704(3) (1984). This deadline, like the rest of § 521(2), was considered procedural as opposed to substantive, so a debtor’s failure to meet the deadline did not “reduce the debtor’s substantive rights.” The “only consequence of the failure to perform” was, “in some cases, relief from the automatic stay with respect to the property.” 4 Collier on Bankruptcy ¶ 521.10[3], at 521-51 (Alan N. Resnick" }, { "docid": "10177340", "title": "", "text": "return of abandoned property to the party with the primary possessory interest (usually the debtor) merely provides that debtor with time to enforce his right to redeem the property under Section 722 or to seek a reaffirmation of the agreement under Section 524(c).” Id. at 1057. The court in Bell also found, however, that the debtors were in default of their obligations under the security agreement. Id. at 1058. Again, no default of the security agreement has been demonstrated in the instant case. In Riggs National Bank of Washington, D. C. v. Perry, 729 F.2d 982 (4th Cir.1984), the court did not reach the issue of whether the debtor was required to reaffirm or redeem the collateral, since that case arose in the context of pre-discharge relief from automatic stay. Id., at 986. The court held, however, that additional obligations should not be imposed on debtors who are current on their payments, merely because they filed under Chapter 7. Id., at 985. This court finds that since debtors were not in default of their obligations, they are not required to reaffirm the debt or redeem the collateral. Discharge under Chapter 7 was not designed to place more onerous burdens on debtors than they bore prior to bankruptcy. Absent a contractual default under the security agreement, discharge of the debtor does not create a right to repossess the vehicle, or to require redemption or reaffirmation. Accord, In re Peacock, 87 B.R. 657 (Bankr.D.Colo.1988); In re Ballance, 33 B.R. 89 (Bankr.E.D.Va.1983); In re Brock, 23 B.R. 998 (Bankr.D.D.C.1982). ACCORDINGLY, the decision of the Bankruptcy Court enjoining appellant from acting to possess debtor’s automobile, and refusing to require debtors to reaffirm their debt to appellant or to redeem the collateral is AFFIRMED. . The court notes that it does not have the benefit of the appellees’ arguments, since they have not filed a responsive brief in this appeal. The court does not approve of this practice, as it does not read the provision for filing a response brief in Bankruptcy Rule 8009(a)(2) to be merely permissive." }, { "docid": "18799898", "title": "", "text": "AN ORDER TO PREVENT A WRONG HAL J. BONNEY, Jr., Bankruptcy Judge. Once upon a time in the East, the debtor, Mark Lin Ballanee, in better days than these, financed a merry Oldsmobile through First & Merchants National Bank giving, of course, a perfected security interest in the vehicle. During the four year term of the contract, the bank will enjoy $3,021.28 in interest on $8,900.00. When in February of this year the debtor dared file bankruptcy, he was not and is not now delinquent in his monthly payments or in any manner in default. A rarity indeed, but true. The bank filed a complaint asking that it be “granted recovery and immediate possession of the ... property, plus its costs and attorney’s fees,” but alleged no default. As a novel switch in the bankruptcy scenario, the plaintiff argues that it should be allowed to repossess the vehicle unless the debtor redeems it or reaffirms the agreement, realizing that a discharge in bankruptcy would bar a later in personam pursuit of Ballanee. The debtor desires to keep the car and contends he should not have to redeem the vehicle or reaffirm as long as he is current on the obligation. The Law The bank relies upon a case hot off of the advance sheets, G.M.A.C. v. Bell, 700 F.2d 1053 (6th Cir.1988), which, indeed, held a debtor must elect between reaffirmation and redemption. Alas, it is not an enlightened opinion. Really, it does not deal with the redeem or reaffirm or else proposition, but allowed G.M.A.C. to repossess by virtue of a right-to-repossess clause in the security agreement, saying that while there is an invalidation of such clauses pursuant to bankruptcy laws, 11 U.S.C. 541(c)(1), the security agreement clause breathes new life when property is abandoned by the trustee. Utterly ridiculous! A single case is cited in Bell as authority for this: In re Schweitzer, 19 B.R. 860 (Bkrtcy.E.D.N.Y.1982). Interestingly, the Sixth Circuit cited Schweitzer, but Schweitzer cited Bell on the Bankruptcy Court level. There is better law. The Judges for the Bankruptcy Court for Maryland, Mannes, Schneider and Whelan," }, { "docid": "12239260", "title": "", "text": "ORDER ENTERING PERMANENT INJUNCTION A. JAY CRISTOL, Bankruptcy Judge. This matter came before the court on July 29, 1987 upon the debtor’s complaint seeking to enjoin action in violation of the discharge provisions of 11 U.S.C. §§ 524 and 727. The court after having heard the arguments of counsel and reviewing the cases cited by counsel, holds the defendant, Bank South, N.A., be permanently enjoined from continuing its replevin action against the debtor. The court notes that In re Bell, 700 F.2d 1053 (6th Cir.1983), the Sixth Circuit Court of Appeals held that a debtor, who was current on all payments pursuant to a financing agreement for the sale of an automobile when he filed bankruptcy, had to choose between redemption or reaffirmation at the risk of losing the vehicle to the secured creditor. The Bell court found the debtor’s discharge in bankruptcy, absolving the debtor from personal liability in the event the debtor later defaults on its obligations and a deficiency exists between the value of the collateral and the debt, constituted a lack of adequate protection sufficient to entitle the creditor to immediate possession of the vehicle. However, the court recognizes a clear weight of authority to the contrary. See e.g. Riggs National Bank of Washington, D.C. v. Perry, 729 F.2d 982 (4th Cir.1984); In re Cassell, 41 B.R. 737 (Bankr.E.D.Va.1984); In re Ballance, 33 B.R. 89 (Bankr.E.D.Va.1983); In re Brock, 23 B.R. 998 (Bankr.D.C.1982); In re Rosenow, 22 B.R. 99 (Bankr.W.D.Wash.1982); Matter of Woodford, 6 B.C.D. 226, 1 C.B.C.2nd 789 (Bankr.M.D.Fla.1980). All these cases involve situations whereby a debtor making current payments under the terms of an auto financing arrangement declared bankruptcy and continued to meet its obligations under the financing arrangement post-petition. These cases support the proposition that the debtor’s discharge, absolving him from personal liability for any deficiency which results in the event the creditor repossesses its collateral and its value does not equal or exceed the outstanding debt, is insufficient grounds upon which to entitle the creditor to immediate possession of its collateral. These are exactly the kinds of risks assumed by all secured" }, { "docid": "18799901", "title": "", "text": "indebtedness, the creditor is not adequately protected. 29 B.R. at 792. The Perry court is not alone in its conclusions regarding the merits of these arguments. In Matter of Rose, 21 B.R. 272 (Bkrtcy.N.J.1982), the creditor unsuccessful ly argued that the possibility that the debt- or may drop insurance coverage constitutes lack of adequate protection. Id. at 277. The Rose court pointed out that the argument is entirely speculative and that logically the debtor will try to protect and maintain his vehicle, since he will benefit from the equity. Id. District Judge Shirley Jones in G.M.A.C. v. Abel, 17 B.R. 424, 426 (D.C.D.Md.1981), concluded that creditors should not be able to successfully argue that adequate protection never exists when their contractual rights will be barred by a subsequent discharge. The Bell case notwithstanding, the prevailing, majority view in the country is that a debtor not in default should not have to surrender his property in a foreclosure. That he is current says something. A creditor has a remedy should default occur in the future. Redemption requires coming up with the full amount at the moment, no installments. Creditors scream bloody murder when debtors have the funds to redeem but say they ought to redeem when they can’t. As for reaffirmation, since it takes two to dance this tune, creditors have a superior bargaining position. Though First & Merchant’s sole remedy after the debtor’s discharge, should the debtor default, would be repossession of the car, to allow relief here would provide precedent for lifting that stay any time a valid security interest is proven, would ignore the requirements of 362(d)(1) and would result in manifest unfairness to debtors not in default. The bride-to-be, F & M, ought to be grateful for a paying customer. A debtor having filed bankruptcy has not committed a cardinal sin. A part of the “fresh start” Congress provided is invalidation of those boiler plate, ipso facto bankruptcy clauses. In re North American Dealer Group, Inc., 8 B.C.D. 940, 16 B.R. 996 (Bkrtcy.E.D.N.Y.1982); Grant v. American Security Bank, 9 B.C.D. 1035, 23 B.R. 998 (Bkrtcy.D.C.1982). Recovery of" }, { "docid": "17686384", "title": "", "text": "legal effect to retroactive cancellation of the Licenses would effectively validate the functional equivalent of an ipso facto provision (also referred to as a bankruptcy default provision), which serves to inflict a penalty or forfeiture on a debtor for exercising a Federal right. Taylor v. Albany Employees Federal Credit Union {In re Taylor), 146 B.R. 41, 46-47 (M.D.Ga.1992) (holding ipso facto clauses invalid as a matter of law because they serve to penalize debtors from exercising their federal right to file for bankruptcy), rev’d on other grounds, 3 F.3d 1512 (11th Cir.1993); Riggs Nat’l Bank of Washington, D.C. v. Perry {In re Perry), 29 B.R. 787, 790-91 (D.Md.1983) (holding that ipso facto clauses are unenforceable as a matter of law because they unfairly tip the scale in favor of creditors by effectively granting automatic relief from the automatic stay), aff'd, 729 F.2d 982 (4th Cir.1984); General Motors Acceptance Corp. v. Rose {In re Rose), 21 B.R. 272, 275-79 (Bankr.D.N.J.1982) (“Enforceability of these clauses would, in effect, render a penalty on debtors.” Id. at 277). See also 7 Collier on Bankruptcy 111124.03[2] at p. 1124-10 (15th Ed. rev. 1999) (stating that Section 1124(a)(2) of the Bankruptcy Code “permits the plan to reinstate the maturity of a claim or interest without curing any defaults with respect to the financial condition of the debtor that are included in the Section 365(b)(2)(A) ipso facto clauses. This interpretation of Section 1124(a) is correct”). Section 525(a) of the Bankruptcy Code is a statutory companion of the foregoing principle. Section 525(a) prohibits a governmental unit from revoking a license in retaliation for commencement or prosecution of a bankruptcy case or the alleged nonpayment of a pre-petition claim. The statute provides, in relevant part: (a) Except as provided in [not applicable], a governmental unit may not deny, revoke, suspend or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against ... a person that is or has been a debtor under this title ... or another person with whom such debt- or" }, { "docid": "12239261", "title": "", "text": "of adequate protection sufficient to entitle the creditor to immediate possession of the vehicle. However, the court recognizes a clear weight of authority to the contrary. See e.g. Riggs National Bank of Washington, D.C. v. Perry, 729 F.2d 982 (4th Cir.1984); In re Cassell, 41 B.R. 737 (Bankr.E.D.Va.1984); In re Ballance, 33 B.R. 89 (Bankr.E.D.Va.1983); In re Brock, 23 B.R. 998 (Bankr.D.C.1982); In re Rosenow, 22 B.R. 99 (Bankr.W.D.Wash.1982); Matter of Woodford, 6 B.C.D. 226, 1 C.B.C.2nd 789 (Bankr.M.D.Fla.1980). All these cases involve situations whereby a debtor making current payments under the terms of an auto financing arrangement declared bankruptcy and continued to meet its obligations under the financing arrangement post-petition. These cases support the proposition that the debtor’s discharge, absolving him from personal liability for any deficiency which results in the event the creditor repossesses its collateral and its value does not equal or exceed the outstanding debt, is insufficient grounds upon which to entitle the creditor to immediate possession of its collateral. These are exactly the kinds of risks assumed by all secured creditors and that they are aware of these risks and offset them by requiring substantial interest payments. Riggs National Bank of Washington, D.C., supra at 985. The court finds the creditor is continuing to receive the benefits of the agreement bargained for and maintains its rights to repossess the collateral in the event the debtor later defaults. The court believes the positions adopted by the majority of courts that have considered the issue is the better view and, therefore, declines to adopt the reasoning of the Sixth Circuit in the Bell case. It is, therefore, ORDERED that the defendant, Bank South, N.A., be permanently enjoined from repossessing its collateral for so long as there is no default other than the defendants filing for bankruptcy and the bankruptcy discharge." }, { "docid": "18799900", "title": "", "text": "sat en banc on the issue in In re Perry (Riggs National Bank of Washington, D.C. v. Perry), 25 B.R. 817 (Bkrtcy.MD.1982), aff’d, 29 B.R. 787 (D.C.D.Md.1982), and rendered a well-reasoned decision. In the Perry case the creditor asserted the identical premise as here: redeem or reaffirm, but, absent default, the Court said these were no grounds to lift the stay so that the creditor could pursue a current customer. District Judge Joseph C. Howard reexamined the arguments and affirmed. 29 B.R. at 792. The District Court found that lack of adequate protection is not proved merely by the fact that the vehicle is highly depre-ciable, resulting in potential loss to the creditor in the event of default. The possibilities that the debtor will fail to continue insurance coverage or that discharge will result in the debtor’s personal liability being lost to the creditor do not constitute lack of adequate protection. Finally, the Perry court rejected the idea that when the fair market value of the vehicle is equal to less than the debtor’s total indebtedness, the creditor is not adequately protected. 29 B.R. at 792. The Perry court is not alone in its conclusions regarding the merits of these arguments. In Matter of Rose, 21 B.R. 272 (Bkrtcy.N.J.1982), the creditor unsuccessful ly argued that the possibility that the debt- or may drop insurance coverage constitutes lack of adequate protection. Id. at 277. The Rose court pointed out that the argument is entirely speculative and that logically the debtor will try to protect and maintain his vehicle, since he will benefit from the equity. Id. District Judge Shirley Jones in G.M.A.C. v. Abel, 17 B.R. 424, 426 (D.C.D.Md.1981), concluded that creditors should not be able to successfully argue that adequate protection never exists when their contractual rights will be barred by a subsequent discharge. The Bell case notwithstanding, the prevailing, majority view in the country is that a debtor not in default should not have to surrender his property in a foreclosure. That he is current says something. A creditor has a remedy should default occur in the future. Redemption" }, { "docid": "10177339", "title": "", "text": "they maintain their fiscal responsibilities. Id. Although the court’s holding involved an application for pre-discharge relief from stay, the court’s reasoning indicates that loss of personal liability in and of itself does not create default under a security agreement. See also, In re Rosenow, 22 B.R. 99 (Bankr.W.D.Wash.1982); In re Berenguer, 77 B.R. 959, 960 (Bankr.S.D.Fla.1987); In re Cassell, 41 B.R. 737 (Bankr.E.D.Va.1984). Here, the bankruptcy court found that debtor was not in default of the security agreement. This court finds that appellants have failed to present evidence to the bankruptcy court which demonstrates default under the security agreement. There was no evidence before the bankruptcy court that debtors had actually failed to maintain the vehicle, and it would require speculation to conclude that the removal of personal liability alone would result in failure to maintain the vehicle. Lowry also relies on In re Bell, 700 F.2d 1053 (6th Cir.1983), in arguing that debtors are required to reaffirm the debt or redeem the collateral. There, the court stated that “it has been recognized that a return of abandoned property to the party with the primary possessory interest (usually the debtor) merely provides that debtor with time to enforce his right to redeem the property under Section 722 or to seek a reaffirmation of the agreement under Section 524(c).” Id. at 1057. The court in Bell also found, however, that the debtors were in default of their obligations under the security agreement. Id. at 1058. Again, no default of the security agreement has been demonstrated in the instant case. In Riggs National Bank of Washington, D. C. v. Perry, 729 F.2d 982 (4th Cir.1984), the court did not reach the issue of whether the debtor was required to reaffirm or redeem the collateral, since that case arose in the context of pre-discharge relief from automatic stay. Id., at 986. The court held, however, that additional obligations should not be imposed on debtors who are current on their payments, merely because they filed under Chapter 7. Id., at 985. This court finds that since debtors were not in default of their obligations," } ]

[ { "docid": "4372105", "title": "", "text": "a black coworker); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 890 (11th Cir.1986) (white plaintiff maintained a § 1981 claim alleging discrimination because of marriage to a non-white). The remaining circuit courts had not considered the issue; therefore, no split of authority obscured the law in this area. The above referenced cases were sufficient to inform a reasonable government official in 1988 that retaliatory actions against a white employee because of his efforts to defend the rights of racial minorities may violate the employee’s rights as enumerated in § 1981. Thus, we hold, as a matter of law, that Patrick’s right to sue under § 1981 was “clearly established” at the time Miller and Bloomberg terminated his employment. Our inquiry does not end here, however. In order to defeat Defendants’ Motion for Summary Judgment, Patrick must present facts and allegations sufficient to demonstrate Defendants’ conduct violated a right protected by § 1981 — facts and allegations demonstrating discriminatory interference with Patrick’s right to make or enforce a contract. After reviewing the record, we conclude Patrick has presented evidence sufficient to establish the essential elements of his § 1981 claim. First, Patrick alleges Defendants were motivated by racial animus. Racial animus is an element necessary to support a discrimination claim under § 1981. General Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). In his First Amended Complaint, Patrick, a white male, asserts he was fired in retaliation for his support of a black co-worker who filed a racial discrimination complaint against the City. The deposition testimony of City Personnel Director George Shirley and City Attorney Jeff Raley supports this allega tion. Shirley stated he believed Patrick was terminated because of his support for black employees. Raley advised Patrick it would not be in his best interest to continue to help the co-worker with her discrimination complaint. Moreover, the timing of Patrick’s first and only formal evaluation suggests, the possibility of pretext. This evidence is sufficient to raise a genuine issue of material fact as to Defendants’" } ]

[ { "docid": "15437380", "title": "", "text": "v. Terry, 886 F.2d 1339, 1360 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990), by coercing the Stevensville to cancel JFJ’s contract for public accommodations. According to plaintiff JFJ, defendants discriminated against it based on, among other things, its religious creed of evangelical Christianity. Defendants argue that JFJ is not a religion and that, in any event, their actions were not based on JFJ’s espousal of evangelical Christianity, but on its allegedly deceptive use of Jewish symbols and practices, e.g., wearing yarmulkes — which are unrelated and antithetical to JFJ’s professed doctrine — to mislead Jews into joining an organization whose beliefs are at odds with the fundamental precepts of Judaism. On the basis of the present record, we cannot discern whether JFJ qualifies as bona fide religious organization or whether the alleged discrimination was based on religious creed or on practices unrelated to such creed. In short, because questions of material fact pervade our consideration of these issues, the issues must be resolved at trial. See Taylor, 686 F.2d at 1358 (“Whether the defendants were in fact motivated by the alleged animus against religious minorities is, of course, a question for the jury.”) Plaintiffs also contend that they suffered racial discrimination, which certainly fulfills the “class-based animus” requirement of § 1985(3), see Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir.1990), because “gentiles who share the religious belief of plaintiffs are not targeted by defendants.” Defendants argue, however, that plaintiff JFJ cannot be considered a “race” for purposes of the federal civil rights laws. In the related context of claims brought pursuant to 42 U.S.C. §§ 1981 and 1982, the Supreme Court has defined racial discrimination as discrimination based solely on a person’s “ancestry or ethnic characteristics.” Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 2028, 95 L.Ed.2d 582 (1987); see also Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617, 107 S.Ct. 2019, 2021-22, 95 L.Ed.2d 594 (1987). Whether a group constitutes a race under these statutes is to be determined not solely by modern standards, but by" }, { "docid": "12483071", "title": "", "text": "Francis, 481 U.S. at 614, 107 S.Ct. at 2028 (citations omitted and emphasis on the original). Therefore, where, as here, the plaintiffs race and her national origin are “identical as a factual matter” and the pleadings and the answers to the interrogatories make it very clear that she is not only alleging discrimination on the basis of her place of origin without regard for her ethnic background, we must conclude that plaintiffs’ complaint validly states a claim of racial discrimination under § 1981. At least at these stage of the proceedings, we refuse to give plaintiffs allegations so narrow a reading. The St. Francis decision intends to make sure that there is a racial animus behind the discrimination, that the person is being discriminated against because she is of a particular race and not just because she or her ancestors were born in or came from a particular place without regard for their ethnic background. It is clear in this case that the required racial animus, at the very least, has properly been alleged. We are left, then, with the question of whether discrimination against a citizen of the Dominican Republic by or in favor of a citizen of Puerto Rico is actionable under § 1981. In this latest quest we must once again resort to the Supreme Court’s decision in Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 2028, 95 L.Ed.2d 582 (1986). There, the Supreme Court set out to determine whether white anglo-americans could discriminate against persons of arabian ancestry notwithstanding the fact that at the present time they could both be considered to be members of the Caucasian race. While conceding that discrimination within the same race, ie., by one Caucasian against another, was not actionable under § 1981, Id. at 609-610, 107 S.Ct. at 2026-27, the Court nevertheless explained that the proper inquiry in this type of cases was not whether the particular race could be considered a separate race by today’s standards but whether they constituted a group of people that Congress intended to protect at the time § 1981 was" }, { "docid": "20092335", "title": "", "text": "diminished by recognizing that the political process may not be subverted to achieve unlawful goals. CIVIL RIGHTS CLAIMS 1. Sections 1981 and 1982 In their amended complaint, plaintiffs allege that the defendants violated their property and housing rights in violation of 42 U.S.C. §§ 1981 and 1982. Defendants contend that these statutes were directed at discrimination based upon race, not religion, and as a result, plaintiffs have failed to state a claim upon which relief can be granted. See Saint Francis College v. Al Khazraji, 481 U.S. 604, 609, 107 S.Ct. 2022, 2026, 95 L.Ed.2d 582 (1987); Runyon v. McCrary, 427 U.S. 160, 168, 96 S.Ct. 2586, 2593, 49 L.Ed.2d 415 (1976). “[Sections 1981 and 1982] are exclusively directed at discrimination based on race and do not address discrimination based upon religious affiliation.” Catholic War Veterans of the United States v. City of New York, 576 F.Supp. 71, 74 (S.D.N.Y.1983). The gravamen of the complaint is that the defendants undertook their actions in order to achieve their discriminatory goals against Orthodox Jews. The defendants do not dispute the fact that Jewish people entitled to the protections of §§ 1981 and 1982. See Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 618, 107 S.Ct. 2019, 2022, 95 L.Ed.2d 594 (1987). However, defendants argue that their alleged discriminatory acts were addressed solely to the plaintiffs’ affiliation as Orthodox Jews. They suggest that the complaint is framed in terms which claim religious-based discrimination in that any discrimination was directed toward the plaintiffs’ lifestyle as dictated by the tenets of plaintiffs’ religion. See Weiss v. Willow Tree Civic Assoc., 467 F.Supp. at 815-16. The complaint does assert that the plaintiffs suffered discrimination because they were Orthodox Jews. However, that makes no difference. Sections 1981 and 1982 were “intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” Saint Francis College v. Al Khazraji, 481 U.S. at 613, 107 S.Ct. at 2028. Because Jewish culture, ancestry, and ethnic identity are intricately bound up with Judaic religious beliefs, racial and religious discrimination against" }, { "docid": "11882643", "title": "", "text": "state claims after § 1983 claim dismissed on summary judgment). CONCLUSION For the reasons stated above, defendant’s motion for summary judgment is granted. The Clerk of the Court is requested to close this case. SO ORDERED. . The designations \"M-l”, \"M-2”, \"M-3”, etc., are civil service levels, not titles, corresponding generally to increased salary and greater responsibility. (Kutzbach Dep. at 18.) . Plaintiff makes explicit in her response to this motion that the \"conduct that gave rise to Plaintiff [sic] Discrimination and Retaliation claims began in 2002....” (PI. Br. at 1.) As \"background information”, however, plaintiff cites two complaints she made to the NY- CHA's Department of Equal Opportunity (\"DEO”) one in the early 1990s and one in 2001. (PL Br. at 1; Def. 56.1 Statement ¶ 3; PL Aff. ¶ 4.) The first complaint alleged that plaintiff had not been considered for promotional opportunities because she was Chinese, while the second complaint alleged that her immediate supervisor at the time, Ahmad Thabet, had discriminated against her because of her race and gender. (Def. 56.1 Statement ¶ 3; Pl. Aff. ¶ 4.) In each case, the DEO determined that her complaint was without merit. . Section 1981 does not protect against discrimination based on national origin. St. Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987). Because defendant has not challenged plaintiff's action on the grounds that it alleges discrimination on the basis of national origin and not race, and because summary judgment is granted on alternate grounds, the court does not consider the issue. . The court observes that had plaintiff brought a Title VII claim instead of a Section 1981 claim, she might have survived this motion for summary judgment. The substantive elements of an employment discrimination claim under Title VII are identical to those under Section 1981, but unlike Section 1981, the principle of respondeat superior applies to Title VII claims. See Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir.1995); Philippeaux, 871 F.Supp. at 654. Presumably plaintiff did not pursue a Title VII claim because" }, { "docid": "21957913", "title": "", "text": "claim requires a showing that .. . intentional discrimination existed”). Thus, because the Court concludes that the plaintiff has not provided sufficient evidence of intentional racial discrimination, these claims would nevertheless fail even if they were properly plead. . The next sentence of the plaintiff's opposition to the defendants' motion for summary judgment states that \"[ejven though the investigation claimed to find no evidence of harassment or racial discrimination, the allegations of [the plaintiff] nevertheless constituted protected activity.” Pl.’s Opp. at 25. However, as discussed infra, the plaintiff has adduced no facts, whether in her May 2002 memorandum or in her pleadings in this case, suggesting that she had alleged discrimination based on race or otherwise engaged in behavior protected by the DCHRA or Section 1981 at the time of the investigation to which she refers. . The Court does not disagree with the plaintiff's contention that \"even informal protests or accusations of discrimination are protected activity under anti-discrimination laws.” PL's Opp. at 24 (citation omitted). However, other than the May 2002 memorandum, which the plaintiff concedes does not relate to race, the plaintiff has not provided any evidence of informal protests or accusations of discrimination based on race or some other category protected under the DCHRA or Section 1981. . The plaintiff also appears to claim religious discrimination under Section 1981. Am. Compl. ¶ 2. However, religious discrimination claims are not cognizable under Section 1981, which is limited to the prohibition against racial discrimination. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) (stating that Section 1981 \"forbid[s] all racial discrimination in the making of private as well as public contracts”) (internal quotation marks and citation omitted); see also Estate of Williams-Moore v. Alliance One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 647 n. 4 (M.D.N.C.2004) (stating that \"[S]ection 1981 does not protect against discrimination based on religion”) (citations omitted); Farbstein v. Hicksville Pub. Library, 323 F.Supp.2d 414, 417 (E.D.N.Y.2004) (stating that \"Section 1981 is grounded in racial discrimination and does not apply to actions alleging religious discrimination”) (citation omitted). . For example," }, { "docid": "22326399", "title": "", "text": "1983 for certain types of discriminatory acts, including those giving rise to a hostile work environment, see, e.g., Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d at 75 (§ 1981); Hayut v. State University of New York, 352 F.3d 733, 753-54 (2d Cir.2003) (§ 1983). Thus, Patterson's hostile work environment claims against the individual defendants, sued in their individual capacities under §§ 1981 and 1983, are not automatically dismissable. [26] Fourth, although in certain circumstances a Title VII claim may be established through proof of a defendant's mere negligence, without a showing of discriminatory intent, see, e.g., Richardson v. New York State Department of Correctional Service, 180 F.3d at 441-42 (employer subject to liability if negligent in responding appropriately to a complaint of racial harassment by co-workers), a plaintiff pursuing a claimed violation of § 1981 or denial of equal protection under § 1983 must show that the discrimination was intentional, see Tolbert v. Queens College, 242 F.3d 58, 69 (2d Cir.2001) (§ 1981); Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 118 (2d Cir.2004) (§ 1983); see generally Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) (§ 1981); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (§ 1983). Under these principles, and given the substantive standards applicable to conduct that is alleged to have dreated a hostile work environment, discussed in the following section, we conclude that Patterson has raised genuine issues to be tried as to two of the individual defendants but not the others. 2. Hostile or Abusive Work Environment To defeat a motion for summary judgment on a claim of racially hostile work environment, \"a plaintiff must produce evidence that the workplace [wajs permeated with discriminatory intimidation, ridicule, and insult, that [wajs sufficiently severe or pervasive to alter the conditions of the vi~tim's employment.\" Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.2000) (internal quotation marks omitted). Although isolated incidents ordinarily will not rise to the level of a hostile" }, { "docid": "9954796", "title": "", "text": "three individuals, as opposed to occurring when all three were present. In short, Data-card attempts to make too much of this statement. In addition, DataCard contends that Smith’s allegations fail to establish a sufficiently pervasive pattern of unwelcomed sexual harassment. DataCard correctly points out that a plaintiff must prove “more than a few isolated incidents of harassment,” Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir.1983). Here, Smith provides specific examples of recurring offensive sexual conduct that spanned years. These allegations are sufficiently numerous to create a genuine issue of material fact regarding a statutory violation. Finally, DataCard claims that Smith cannot prove that it failed to take proper remedial action. While Smith testifies that on some occasions Reher responded to her complaints, on other occasions he allegedly did not. Based on these allegations, Smith raises a genuine issue of material fact as to whether DataCard took proper action in response to Smith’s numerous complaints about sexual harassment. Consequently, the Court denies Datacard’s motion for summary judgment on Smith’s sex discrimination claims under a hostile work environment theory. 4. Raee Discrimination Counts V, VI, and VII contain allegations that Defendants discriminated against Smith on the basis of her race in violation of 42 U.S.C. § 1981, Title VII, and the MHRA, respectively. As with her sex discrimination claims, Smith pursues her charges of race discrimination under two theories: disparate treatment and hostile work environment. Defendants assert that these counts must be dismissed since Smith fails to support her allegations with adequate evidence of race discrimination. In this instance, the Court agrees with Defendants. In Count V, Smith alleges that Defendants’ discriminatory conduct violated 42 U.S.C. § 1981. Among other things, section 1981 protects individuals from racial discrimination in the context of making and enforcing contracts. 42 U.S.C. § 1981(a). The phrase “make and enforce contracts” is defined to include “making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b). To recover damages under section 1981, a plaintiff must establish that: (1) the plaintiff" }, { "docid": "11882644", "title": "", "text": "Statement ¶ 3; Pl. Aff. ¶ 4.) In each case, the DEO determined that her complaint was without merit. . Section 1981 does not protect against discrimination based on national origin. St. Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987). Because defendant has not challenged plaintiff's action on the grounds that it alleges discrimination on the basis of national origin and not race, and because summary judgment is granted on alternate grounds, the court does not consider the issue. . The court observes that had plaintiff brought a Title VII claim instead of a Section 1981 claim, she might have survived this motion for summary judgment. The substantive elements of an employment discrimination claim under Title VII are identical to those under Section 1981, but unlike Section 1981, the principle of respondeat superior applies to Title VII claims. See Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir.1995); Philippeaux, 871 F.Supp. at 654. Presumably plaintiff did not pursue a Title VII claim because she failed to file a charge of employment discrimination with the Equal Employment Opportunity Commission within the prescribed 180 days. 42 U.S.C.2000e-5(f)(1); Holt v. KMI-Continental Inc., 95 F.3d 123, 132 (2d Cir.1996). . In the preliminary statement to her brief, plaintiff alleges that there is a discriminatory \"pattern of practice\" at the NYCHA. PL Br. at 1. The section of her brief devoted to Mo-nell liability, however, does not argue in favor of municipal liability on a custom or practice theory, nor is NYCHA’s allegedly discriminatory \"pattern of practice” even mentioned. In any event, five transfers or promotion notices of white employees is not evidence of a discriminatory custom or practice, and plaintiff produces no other evidence to support such a theory." }, { "docid": "21718999", "title": "", "text": "each Defendant. The Court also directed the jury to answer specific questions tailored to Plaintiffs multiple theories of discrimination. The jury responded as follows to the Court’s interrogatories concerning Plaintiffs claims of race-based hostile work environment and wrongful termination under § 1981 against Young: Part I. Hostile Work Environment Discrimination Claim IA. Has Plaintiff proved by a preponderance of the evidence that Defendant Young intentionally discriminated against Plaintiff by creating or maintaining a hostile work environment on the basis of Plaintiffs race? Yes X No _ If your answer is “No,” proceed to Part 2. If your answer is ‘Yes,” proceed to Question IB. IB. What are Plaintiffs damages, if any, for intentional hostile work environment discrimination by Defendant Young? For emotional distress: $15,000 For punitive damages: $15,000 In Part II of Young’s verdict form, the jury responded “No” to the question whether Plaintiff proved Young intentionally caused BJY to terminate Plaintiffs employment. Plaintiff, therefore, prevailed on his § 1981 race discrimination claim against Young only on the hostile work-environment theory. Young now moves for judgment as a matter of law (and, alternatively, for a new trial) on Plaintiffs § 1981 claim based on a hostile work environment. Young asserts the evidence was insufficient to support any finding that (1) his conduct was racially based, (2) his conduct created a hostile work environment, or (3) his conduct affected Plaintiffs right to make and to enforce his employment contract with BJY. Young made these same arguments at trial. Viewing the evidence in the light most favorable to Plaintiff, the Court remains convinced rational jurors could find Young’s conduct was based on Plaintiffs status as an Arab. The Supreme Court has identified “targets of race discrimination for purposes of Section 1981 include groups that today are considered merely different ethnic or national groups, such as Arabs, Jews, Germans and Italians.” Benigni v. City of Hemet, 879 F.2d 473, 477-78 (9th Cir.1988), reh’g denied, 882 F.2d 356 (1989)(citing Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609-12, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987)). See also Pavon v. Swift Transp. Co., Inc., 192" }, { "docid": "22975026", "title": "", "text": "its conclusory and irrelevant assertion that any disparate treatment was “inadvertent.” Regarding the zucchini incident, Sysco argues that Bill Zink, who saw Fonseca’s zucchini accident, determined that Fonseca intentionally damaged the goods, and therefore discipline was appropriate. “[A] plaintiff can prove pretext either ‘(1) indirectly, by showing that the employer’s proffered explanation is ‘unworthy of credence’ because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.’ ” Lyons, 307 F.3d at 1113 (9th Cir.2002) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-22 (9th Cir.1998)). Fonseca argues that the zucchini damage demonstrably was not his fault, and further that it would have been ridiculous for Zink or Peterson to conclude that Fonseca would intentionally damage goods in front of four supervisors. This is supported by Fonseca’s testimony that no one conducted any investigation into the incident, and that Fonseca successfully grieved his suspension. In addition, while Zink’s declaration states that he recommended discipline, Peterson was the person who ordered Fonseca’s suspension. Given the evidence of Peterson’s discriminatory animus, Fonseca has shown sufficient evidence of pretext to rebut the one explanation that Sysco produced. See Chuang v. Univ. of California Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir.2000) (“[A] disparate treatment plaintiff can survive summary judgment without producing any evidence of discrimination beyond that constituting his prima facie case, if that evidence raises a genuine issue of material fact regarding the truth of the employer’s proffered reasons.”). There is a genuine issue of material fact as to whether Sysco’s adverse employment actions against Fonseca constituted disparate treatment on the basis of race or ethnicity. We reverse the district court’s grant of summary judgment. III. Employment Discrimination under § 1981 Under 42 U.S.C. § 1981, discrimination based on “ancestry or ethnic characteristics” is prohibited. St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987). Although national origin discrimination is not within the ambit of § 1981, race has been defined broadly to cover immigrant ethnic groups. See Manatt v. Bank of" }, { "docid": "16445622", "title": "", "text": "Properly Denied Young’s Motion for Judgment as a Matter of Law on the Racial Discrimination Claim Defendants argue that they could not be held liable for intentionally discriminating on the basis of. race under § 1981, because the name “Manny” is not a racial epithet. We disagree with Defendants’ premise. Their contention that actionable race discrimination must be based on physical or “genetically determined characteristics such as skin color” ignores the broad reach of § 1981. In Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987), the United States Supreme Court explained that “a distinctive physiognomy is not essential to qualify for § 1981 protection.” Rather, the section was “intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” Id. A group’s ethnic characteristics encompass more than its members’ skin color and physical traits. Names are often a proxy for race and ethnicity. See Orhorhaghe v. INS, 38 F.3d 488, 498 (9th Cir.1994) (recognizing that “discrimination against people who possess surnames identified with particular racial or national groups is discrimination on the basis of race or national origin.”) (citation omitted). In Manatt v. Bank of America, 339 F.3d 792, 794-95 (9th Cir.2003), we identified two incidents of racial derogation directed at a Chinese woman. One instance occurred when other employees ridiculed the woman for mispronouncing “Lima,” and the other consisted of employees pulling their eyes back with their fingers in mocking imitation of the appearance of Asians. Id. at 798. Although the second instance is an example of discrimination directed at a genetically-determined physical trait, the first is not. In the first instance, the coworkers were ridiculing the woman’s language and pronunciation rather than a physical characteristic. Thus, Defendants misread Manatí when they cite it for the proposition that racial discrimination must be based solely on physical traits. We also reject Defendants’ contention that Young’s conduct was not frequent or pervasive enough to create a hostile work environment. It is true that “[c]onduct that is not severe or pervasive enough" }, { "docid": "12483068", "title": "", "text": "claim of racial discrimination from the substantive point of view given the fact that it is solely based on the employee’s nation of origin and not on her race. As defendant elaborated on this argument, however, two somewhat distinct lines of reasoning emerged. On the one hand, the most natural construction of the argument first asserted that § 1981 encompasses only claims of racial discrimination, not protecting against discrimination on grounds of religion, sex, age, national origin, or place of birth, see Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 2028, 95 L.Ed.2d 582 (1986), and then submitted that plaintiff’s allegations to the effect that she had been discriminated against because of the fact that she was a “Dominican national ” and “on the basis of her place of birth ” therefore did not state a claim under § 1981. On the other hand, it was argued that discrimination against a citizen of the Dominican Republic by or in favor of a citizen of Puerto Rico was not redressable under the federal civil rights laws due to the fact that they both belonged to the larger class of individuals commonly referred to as Hispanics. To allege that she was discriminated against because she was a Dominican national, the thesis runs, would constitute an allegation on the basis of her place of birth (the Dominican Republic), not on her race (the Hispanic race), and therefore not actionable under § 1981. In our previous opinion we had occasion to address the first of these two arguments. Today we review briefly that earlier determination and present our position as to the second one. We echo, of course, the Supreme Court’s conclusion to the effect that in drafting § 1981 “Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” Saint Francis, 481 U.S. at 613, 107 S.Ct. at 2028. In order to prove racial discrimination within the meaning of § 1981, then, a plaintiff must prove that she was discriminated against on the basis of" }, { "docid": "18207700", "title": "", "text": "the behavior complained of in order for a defendant to be held liable under § 1981. See Tolbert v. Queens College, 242 F.3d 58, 69 (2d Cir.2001). Identifying evidence of discriminatory intent requires an expansive approach to the record, since “plaintiffs in discrimination suits often must rely on the cumulative weight of circumstantial evidence,” and a defendant “is unlikely to leave a ‘smoking gun[.]’ ” Norton v. Sam’s Club, 145 F.3d 114, 119 (2d Cir.1998). In support of his claim that defendants Mangone and Ciurcina intentionally discriminated against him, plaintiff has offered his own and Ms. Lopez’s testimony that upon first encountering plaintiff, without provocation, defendant Mangone directed racial epithets toward plaintiff by calling him a “nigger,” accused him of throwing used drug vials and condoms in the parking lot, and of “not belonging” in the parking lot. Defendant Mangone denies that he used any racially charged language. There is no dispute that defendant Ciurcina was not present at the time defendant Mangone allegedly used racial slurs against plaintiff, and plaintiff does not allege that defendant Ciurcina was at some point during the incident apprised of defendant Mangone’s alleged statements, nor that defendant Ciurcina himself used racial slurs. Assuming, as further discussed below, that the discriminatory acts alleged by plaintiff concern one or more of the activities enumerated in the statute, whether defendant Mangone used racial epithets is an issue of fact that is material to determining whether defendant Man-gone possessed the requisite discriminatory intent. Accordingly, defendant Man-gone is not entitled to summary judgment on this ground. With regard to defendant Ciurcina, however, even when the facts are construed in the light most favorable to plaintiff, plaintiff has failed to adduce evidence sufficient to permit a reasonable fact-finder to find that defendant Ciurcina was motivated by racial animus. While plaintiff alleges that defendant Ciurcina aimed and drove his vehicle directly toward plaintiff, joined defendant Mangone in attempting to subdue plaintiff, and may have hit plaintiff over the head with a level, standing alone, these alleged acts of violence are insufficient to support a finding of race-based discriminatory intent. “Hostile conduct" }, { "docid": "3960386", "title": "", "text": "the City of New York, 781 F.2d 15, 23 (2d Cir.1986), it has also been used in some circuits to remedy racially motivated abuse of state authority. Coleman v. Franklin Parish School Board, 702 F.2d 74 (5th Cir.1983), Washington v. Simpson, 806 F.2d 192 (8th Cir.1986), Evans v. McKay, 869 F.2d 1341 (9th Cir.1989). The Supreme Court has held that the statute applies to discrimination on the basis of ethnicity as well as race. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 608-610, 107 S.Ct. 2022, 2025-2027, 95 L.Ed.2d 582 (1987). Plaintiffs claim they were discriminated against on the basis of their Hispanic ethnicity. Specifically, they allege that their apartments were singled out to be searched because they have Hispanic surnames. (Amended Complaint TC 45-46) They also allege that the agents’ use of excessive force was motivated by racial prejudice and that the agents made thinly disguised ethnic slurs against them (a comment about an apartment being roach-infested and an implication by an officer that one of the plaintiffs could not legitimately afford the high cost of her apartment, Plaintiffs’ Brief at 63). To prevail, plaintiffs must show that “the defendants’ acts were purposefully discriminatory, and racially motivated.” General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). Plaintiffs fail to produce evidence of racial or ethnic motivation, circumstantial or otherwise. Plaintiffs do not establish any connection between defendants’ alleged knowledge of plaintiffs’ ethnicity and the alleged police misconduct. Plaintiffs present no evidence to suggest that defendants singled out some tenants’ apartments over others in selecting which apartments to search. Plaintiffs do not allege that defendants referred directly to plaintiffs’ ethnicity before, during, or after the search. Nor do they show that law enforcement agents routinely treat white people differently from the way they treat Hispanic people during similar searches. Because no evidence of intentional discrimination or ethnic motive has been presented, the § 1981 claim must be dismissed for failure to state a claim. Plaintiffs fail to state a claim also under 42 U.S.C. § 1982, which in relevant part" }, { "docid": "487059", "title": "", "text": "decisions. Moreover, Section 1981 does not protect the rights of gays, those who are supportive of gays, or those without old family ties to Hamilton College. The statute only protects those who allege discrimination because of race or ethnic characteristics. See Saint Francis College v. Al-Khazraji, — U.S. -, 107 S.Ct. 2022, 2026-28, 95 L.Ed.2d 582 (1987); Zemsky v. City of New York, 821 F.2d 148, 150-51 (2d Cir.1987). This limitation on Section 1981’s scope proves fatal to plaintiffs’ claim because there is nothing in the complaint or in the record alleging or showing the race or ethnicity of any of the individual plaintiffs. We are thus unable to determine which plaintiffs have an action under Section 1981 and may be entitled to injunctive relief. See Stanley v. City of New York, 587 F.Supp. 393, 396 (E.D.N.Y.1984). Even if the complaint were not otherwise fatally flawed, the allegations of selective enforcement of Hamilton’s disciplinary rules are nonetheless insufficient. The undisputed facts are that Hamilton suspended all students, of whatever race, background or sexual orientation, who ignored the final warning notice to leave the building, and did not discipline any students who heeded that warning. See Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985) (“[I]t is important to note that Quarles was terminated along with his partner, who is a white man. In this setting, Quarles’s allegations of discriminatory intent border on the frivolous.”). It is preposterous to suggest that Hamilton’s warnings to those occupying the building were not meant seriously until all of the white, non-ethnic, heterosexual offspring of Hamilton alumni vacated the building. Plaintiffs also argue that Hamilton failed to respond to several incidents of alleged harassment of black students with appropriate disciplinary measures and thus selectively enforced its disciplinary rules when it suspended plaintiffs. However, the im position of discipline by college administrators is highly fact-specific and discretionary. An inference of purposeful discrimination can be drawn only by comparing responses to similar acts of misconduct or patterns of discipline of students of different races over an ample period of time. The incidents alleged by plaintiffs" }, { "docid": "3227463", "title": "", "text": "university). C. Section 1981 Claim Title 42 U.S.C. § 1981 “prohibits racial discrimination in ‘the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”’ Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1532 (10th Cir.1995). “The purpose of § 1981 is to prevent discrimination against an individual on the basis of his or her race or ethnic background.” Olguin v. Lucero, 87 F.3d 401, 404-05 (10th Cir.1996). Thus, to state a claim under § 1981, a plaintiff must allege that defendants “intentionally or purposefully discriminated against her,” Reynolds, 69 F.3d at 1532, on the basis of her race or ethnicity. In this case, plaintiff does not allege any direct or circumstantial evidence that would give rise to an inference that she was subject to racial or ethnic discrimination. In fact, she does not even allege that she belongs' to a minority group. Even under the liberal standards governing a motion to dismiss for failure to state a claim, these allegations fail to state a § 1981 claim. See, e.g., Olguin, 87 F.3d at 404-05 (complaint that failed to mention, implicitly or explicitly, that plaintiffs were discriminated against because of their race or ethnic background was insufficient under § 1981); Brooks v. Couchman, No. 04-2209-KHV, 2004 WL 2607551, at *5 (D.Kan. Nov.16, 2004) (dismissing § 1981 claim for failure to state a claim where the plaintiff did not allege discrimination on account of racial animus); Hill v. McHenry, No. 99-2026-CM, 2001 WL 238141, at *7 (D.Kan. Feb.20, 2001) (same, where nowhere in plaintiffs claim did he mention that he was, discriminated against on the basis of his race). Accordingly, defendant’s motion is granted with respect to plaintiffs’ § 1981 claim. D. Plaintiffs Remaining Claims and Arguments Given the court’s dismissal of plaintiffs federal law claims, the court declines to resolve the parties’ remaining arguments including, for example, the viability of plaintiffs claim for punitive damages on her § 1981 and § 1983 claims and the individual defendants’ claims of qualified immunity. Further, given the court’s dismissal of plaintiffs" }, { "docid": "22975027", "title": "", "text": "the evidence of Peterson’s discriminatory animus, Fonseca has shown sufficient evidence of pretext to rebut the one explanation that Sysco produced. See Chuang v. Univ. of California Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir.2000) (“[A] disparate treatment plaintiff can survive summary judgment without producing any evidence of discrimination beyond that constituting his prima facie case, if that evidence raises a genuine issue of material fact regarding the truth of the employer’s proffered reasons.”). There is a genuine issue of material fact as to whether Sysco’s adverse employment actions against Fonseca constituted disparate treatment on the basis of race or ethnicity. We reverse the district court’s grant of summary judgment. III. Employment Discrimination under § 1981 Under 42 U.S.C. § 1981, discrimination based on “ancestry or ethnic characteristics” is prohibited. St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987). Although national origin discrimination is not within the ambit of § 1981, race has been defined broadly to cover immigrant ethnic groups. See Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir.2003). Analysis of an employment discrimination claim under § 1981 follows the same legal principles as those applicable in a Title VII disparate treatment case. Id. at 797-98. Both require proof of discriminatory treatment and the same set of facts can give rise to both claims. Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir.1985). For the reasons stated above, there is a genuine issue of material fact as to whether Sysco employees discriminated against Fonseca because he is Hispanic. We therefore reverse the grant of summary judgment on Fonseca’s § 1981 claim. CONCLUSION We affirm the grant of summary judgment as to Fonseca’s Title VII claim regarding funeral leave because it is barred by the statute of limitations. We reverse the grant of summary judgment on all other claims. The district court abused its discretion when it excluded all of Fonse-ca’s evidence, and there are genuine issues of material fact that preclude summary judgment on his disparate treatment claims. AFFIRMED in part, REVERSED in part, and" }, { "docid": "15437381", "title": "", "text": "F.2d at 1358 (“Whether the defendants were in fact motivated by the alleged animus against religious minorities is, of course, a question for the jury.”) Plaintiffs also contend that they suffered racial discrimination, which certainly fulfills the “class-based animus” requirement of § 1985(3), see Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir.1990), because “gentiles who share the religious belief of plaintiffs are not targeted by defendants.” Defendants argue, however, that plaintiff JFJ cannot be considered a “race” for purposes of the federal civil rights laws. In the related context of claims brought pursuant to 42 U.S.C. §§ 1981 and 1982, the Supreme Court has defined racial discrimination as discrimination based solely on a person’s “ancestry or ethnic characteristics.” Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 2028, 95 L.Ed.2d 582 (1987); see also Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617, 107 S.Ct. 2019, 2021-22, 95 L.Ed.2d 594 (1987). Whether a group constitutes a race under these statutes is to be determined not solely by modern standards, but by Congress’ understanding at the time it passed the pertinent statutes of what groups constituted races. See Shaare Tefila, 481 U.S. at 617, 107 S.Ct. at 2021-22. Under this test, Jews have been considered a race for purposes of § 1982. Id. at 617-18, 107 S.Ct. at 2021-22. Because § 1985(3), like §§ 1981 and 1982, was enacted in the late 19th century, Griffin, 403 U.S. at 99-102, 91 S.Ct. at 1796-97, we believe that similar notions of what groups constitute a race should apply under this statute. However, determining that Jews may sue for racial discrimination under § 1985(3), see, e.g., LeBlanc-Sternberg v. Fletcher, 781 F.Supp. 261, 267-69 (S.D.N.Y.1991), does not end our inquiry. Rather, we must determine whether plaintiff JFJ can allege racial discrimination under § 1985(3). We do not believe that it can. Despite its name, the record indicates that JFJ’s members include both Jews and non-Jews. Because JFJ is a racially diverse society, it cannot, by definition, constitute a racial class or, consequently, maintain a claim as “Jews” of racial discrimination. Cf." }, { "docid": "5370938", "title": "", "text": "deciding whether plaintiff’s medical license is a property interest protected by section 1982, we find that defendants are entitled to summary judgment on plaintiff’s section 1982 claim. Racial discriminatory animus is an essential element of a section 1982 action. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 2189, 20 L.Ed.2d 1189 (1968); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617, 107 S.Ct. 2019, 2021, 95 L.Ed.2d 594 (1987). In the present case, plaintiff has failed to present any evidence demonstrating that defendants’ conduct was racially motivated. The uncontroverted facts establish that defendant Kleoppel did not know and had no reason to know or believe that Dr. Taliaferro was an African American. Likewise, there is no evidence that defendant Oseo or defendant DeGoler’s were motivated by racial animus when they, through their respective employees, provided information to the Board at the Board’s specific request. C. 42 U.S.C. § 1981 In his section 1981 claim, plaintiff alleges that defendants collectively have impaired and deprived him of the same right as enjoyed by white physicians to make and enforce contracts and have subjected him to punishment different from that imposed on white physicians for the same alleged professional misconduct. In order to maintain a cause ofaction under section 1981, plaintiff must prove, among other things, intentional discrimination on the basis of race. See General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 387-88, 102 S.Ct. 3141, 3148-49, 73 L.Ed.2d 835 (1982). Mere conclusory allegations of purposeful discriminatory intent do not sustain plaintiff’s burden of proof to demonstrate a genuine issue of material fact. Lewis v. Ft. Collins, 903 F.2d 752, 759 (10th Cir.1990). In a section 1981 case, plaintiff’s burden goes beyond producing “some evidence” and requires that plaintiff prove purposeful discrimination by specific evidence of discriminatory purpose. Id.; see Anderson, 477 U.S. at 256, 106 S.Ct. at 2514 (the nonmoving party “may not rest on mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial”). As stated above, there is no evidence that" }, { "docid": "21719002", "title": "", "text": "this conduct over Plaintiffs repeated objections. Young also contends he is entitled to judgment as a matter of law because he cannot be individually liable under § 1981 without privity of contract with Plaintiff. As the Third Circuit noted in its decision in Al-Khazraji v. Saint Francis College, however, an officer of a corporation who intentionally infringes on an individual’s rights protected under § 1981 is personally liable: In particular, directors, officers, and employees of a corporation may become personally liable when they intentionally cause an infringement of rights protected by Section 1981, regardless of whether the corporation may also be held liable. If individuals are personally involved in the discrimination ... and if they intentionally caused the ... [infringement of] Section 1981 rights, or if they authorized, directed, or participated in the alleged discriminatory conduct, they may be held liable. 784 F.2d 505, 518 (3d Cir.1986), aff'd on other grounds, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) (citations omitted). In summary, Young has not offered any persuasive arguments to set aside the jury’s specific finding that he discriminated against Plaintiff based on Plaintiffs race in violation of § 1981. The Court, therefore, denies Young’s Motion for Judgment as a Matter of Law. B. The Court erred when it did not instruct the jury that BJY would be vicariously liable to Plaintiff if the jury found against Young on Plaintiffs § 1981 race discrimination claim. Although the jury specifically found Young intentionally discriminated against Plaintiff by creating a racially-hostile work environment, the jury answered “No” when asked: “Has Plaintiff proved by a preponderance of the evidence that Defendant BJY, Inc., discriminated against Plaintiff by creating or maintaining a hostile work environment on the basis of Plaintiffs race or religion?” Young moves alternatively for a new trial. Young asserts the jury’s Verdict holding him liable for race-discrimination is inconsistent with the Verdict in which the jury found BJY did not discriminate against him on the basis of race. Young argues the solution to this inconsistency is to vacate the judgment against him. Neither Young nor BJY, however, objected" } ]

[ { "docid": "5477303", "title": "", "text": "PER CURIAM: This case carries some of the taint that we found in United States v. Chisum, 9 Cir., 1971, 436 F.2d 645. Here, as in that case, the appellant’s conviction of violating 21 U.S.C. § 174 by selling heroin on two occasions rests almost entirely on the testimony of Agent Saiz, who made the buys. As the prosecutor said in his argument to the jury: “Whether it is lawful entrapment or unlawful entrapment comes down to the fact of who is telling the truth, Agent Saiz or Defendant Miramon.” There are two differences from Chis-um. The first is that the offenses here involved occurred in February and March of 1966, while those involved in Chisum and in the indictment of Saiz occurred in May, 1966. We do not regard this time difference as sufficient to obliterate the taint. The second is that Miramon’s only defense was entrapment. He admitted the transactions, thus to a considerable extent corroborating Saiz. But his story as to how he came to sell heroin to Saiz was quite different from that of Saiz. Thus Saiz’s credibility was a vital factor in the case, and so the taint remains. Whether we would reverse on that ground alone,- we need not decide, because there is another ground for appeal that also has merit. Saiz said that he was introduced to one Sanchez, a co-defendant with Miramon, by an informer, and by Sanchez to Miramon. Sanchez arranged the buys from Miramon. The informer may have been present when Miramon first appeared. The informant was also present at the second sale, or at least when it was initiated by Saiz, and took part in arranging it. Miramon’s story was that he was an addict, and was prevailed upon by Sanchez to get narcotics for Saiz and the informer, who were also said to be addicts. He acted partly out of sympathy for them, but primarily because he was to have some of the narcotic for himself. He called Sanchez as a witness, but Sanchez invoked his privilege against self incrimination and did not testify. The court declined to" } ]

[ { "docid": "18913047", "title": "", "text": "on the contrary, he informed defense counsel of the investigation then pending against Walters. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). As the Supreme Court noted in Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956), “new evidence which is ‘merely cumulative or impeaching’ is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial.” Id. at 9, 77 S.Ct. at 5 (footnote omitted). See United States v. Johnson, 327 U.S. 106, 111 n. 5, 66 S.Ct. 464, 466 n. 5, 90 L.Ed. 562 (1946). Although the Supreme Court granted the accused a new trial in Mesarosh, it did so because it found circumstances beyond mere impeachment. The Court specifically observed that the Government itself had questioned whether the witness involved had testified truthfully at the accused’s trial. Furthermore, the present case, unlike United States v. Chisum, 436 F.2d 645, 649 (9th Cir. 1971), does not involve a conspiracy by government agents to wrongfully convict an individual through subornation of perjury and the making of false statements in a case “related to contemporaneous and somewhat similar events.” Finally, the witness’ crime in the present case is not directly related to the appellant’s criminal misconduct as in United States v. Senft, 274 F. 629 (E.D.N.Y. 1921). Thus, the evidence in the present case is limited to general impeachment. Considering the entire evidence of record, we are convinced that this evidence would not “probably cause a different result.” The decision of the United States Army Court of Military Review is affirmed. The Petition for New Trial is denied. Judge FLETCHER concurs. . In accordance with his pleas, the appellant was acquitted of other offenses. . Paragraph 109d, Manual for Courts-Martial, United States, 1969 (Revised edition), defines this condition as “would probably produce a substantially more favorable result for the accused.” EVERETT, Chief Judge (concurring in part and dissenting in part): I agree with the majority’s disposition of the issue concerning denial of appellant’s request for various witnesses. However, my review" }, { "docid": "13715774", "title": "", "text": "not call Lawrence at the hearing. . Appellant cites Williams v. United States, 500 F.2d 105 (9 Cir. 1974) as “dispositive of this appeal.” Williams was one of a number of appeals from motions denying a new trial in narcotics convictions where five narcotics agents of the Salt Lake City office of the B.N. D.D. had pleaded guilty to violating the civil rights of a narcotics defendant, one Romero, by committing perjury at his trial. United States v. Mendelsohn et al., Crim.No.4337 (C.D.Cal.1969) (described in United States v. Chisum, 436 F.2d 645, 647-48 (9 Cir. 1971)). These agents had been key witnesses against narcotics defendants, their respective identifications of the defendant in each case being important to his conviction. Relying on Mesarosh v. United States, supra, the Ninth Circuit granted new trials in several cases where it appeared that the perjury of which the agents were themselves convicted as a violation of civil rights were in investigations similar in nature and contemporaneous in time to the investigation of the particular narcotics defendant whose conviction was before the Court. See United States v. Williams, supra, 500 F.2d at 108. Convictions were upset in United States v. Chisum, supra; United States v. Miramon, 443 F.2d 361 (9 Cir. 1971) (conviction “rests almost entirely on the testimony of Agent Saiz”); United States v. Williams, supra. The Williams series is clearly distinguishable on two grounds: 1) The narcotics agents fell into the class of professional purveyors of false charges as in Mesarosh; 2) we have carefully reviewed the evidence, as appears in the text, and failed to find in Leuci’s testimony anything like the pivotal significance of the narcotics agents’ testimony that they had bought narcotics from defendants whom they positively identified. . After agreement on this opinion by our panel, we found that another panel (Hays and Feinberg, Circuit Judges, and Holden, District Judge) had filed an opinion in United States v. Seijo and Hildebrandt, 514 F.2d 1357 (2 Cir. 4/23/75). Although counsel for appellant Rosner has not yet had time to call the slip opinion to our notice, we shall consider it" }, { "docid": "7796879", "title": "", "text": "in conflict with the teachings of the Supreme Court in Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956). There, the Court had before it, on direct review, the convictions of a number of defendants for conspiracy to violate the Smith Act. The Solicitor General revealed that a key government witness had apparently testified untruthfully in the same role in other similar proceedings. The Supreme Court, making clear that it was not ruling on a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, stated that the witness’ “credibility [had] been wholly discredited,” id. at 9, 77 S.Ct. 1, and that it would be “unreasonable” to find that “the witness . testified truthfully in this case in 1953 as an undercover informer concerning the activities of the Communist conspiracy, yet concurrently appeared in the same role in another tribunal and testified falsely . about a plan by different members of the Communist conspiracy to assassinate a United States Senator,” id. at 13, 77 S.Ct. at 7 (footnote omitted). This being so, a majority of the Court believed that a new trial was required. Cf. Communist Party of the United States v. Subversive Activities Control Bd., 351 U.S. 115, 124, 76 S.Ct. 663, 668, 100 L.Ed. 1003 (1956) (“If these witnesses in fact committed perjury in testifying in other cases on subject matter substantially like that of their testimony in the present proceedings, their testimony in this proceeding is inevitably discredited . . . .”). We have followed this approach in cases where the factual circumstances have closely paralleled those found in Mesarosh. See Williams v. United States, 500 F.2d 105 (9th Cir. 1974); United States v. Chisum, 436 F.2d 645 (9th Cir. 1971). We believe that the principles which guided the Court in Mesarosh are limited in application to those rare cases where the credibility of a key government witness has been “wholly discredited” by the witness’ commission of perjury in other cases involving substantially similar subject matter. See United States v. Stofsky, supra, 527 F.2d at 246." }, { "docid": "7566995", "title": "", "text": "DUNIWAY, Circuit Judge: In 1967, Chisum was convicted on all counts of a ten-count indictment charging violations of 21 U.S.C. § 174 and 26 U.S.C. § 4705(a). He appealed to this court, and we, on January 14, 1970, affirmed the conviction. Chisum v. United States, 9 Cir., 1970, 421 F.2d 207. On March 5, 1970, Chisum filed a motion to vacate under 28 U.S.C. § 2255. He appeals from denial of that motion. We treat the motion as one for a new trial under Rule 33, F.R.Crim.P., on the ground of newly discovered evidence. The motion was made within two years after the mandate of affirmance from this court. See Casias v. United States, 10 Cir., 1964, 337 F.2d 354. The indictment dealt with three transactions, occurring respectively on May 11, (counts one through four), May 24, (counts five through seven), and May 26, 1966, (counts eight through ten). Counts two and four change a sale of 55.640 grams of heroin to Chris V. Saiz, a federal narcotic agent, in violation of 21 U.S.C. § 174 and 26 U.S.C. § 4705(a). Count one charges concealment, etc. of .620 grams of heroin in violation of § 174, and count three makes the same charge as to the 55.640 grams of heroin. Counts five and seven charge a sale of 18.070 grams of heroin to Saiz in violation of §§ 174 and 4705(a); count six charges concealment, etc. of the same heroin in violation of § 174. Counts eight and ten charge a sale of 6.965 grams of heroin to Saiz in violation of §§174 and 4705(a); count nine charges concealment, etc. of the same heroin in violation of § 174. An examination of the trial transcript reveals that the convictions rest upon the testimony of Saiz, that without his testimony the convictions could not stand. Briefly, his story was as follows: On May 11, 1966, pursuant to a telephone call from Chisum to an informant, Saiz and the informant went to Chis-um’s residence. Chisum showed Saiz a sample of heroin. This is the basis of count one of the indictment. They" }, { "docid": "7567002", "title": "", "text": "counts against them were dismissed. Saiz and Downing pleaded and were sentenced to serve one year, suspended and probation granted on November 24, 1969. We do not consider the dismissal of the other counts, obviously part of a plea bargain, as rehabilitating the veracity of Saiz or Downing for the purposes of Chisum’s case. In our opinion, this case is not governed by the ordinary rules governing motions for a new trial. Rather, it falls within the principles announced in Mes-arosh v. United States, 1956, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1. There, the defendants had been convicted of violating the Smith Act. When the case reached the Supreme Court, the government represented to the Court that one Mazzei, a principal government witness, had given false testimony in other Smith Act cases, which raised a doubt as to his veracity in the Mesarosh case. The government said that it believed that Mazzei’s testimony in the Mesarosh case “was entirely truthful and credible,” and suggested that the case be remanded to the District Court for it to pass upon Maz-zei’s veracity at the Mesarosh trial. The Court, however, declined to accept the suggestion, pointing out that it was the jury, not the trial judge, which passed upon Mazzei’s credibility. Instead, the Court, speaking through Chief Justice Warren, said: * * * “The dignity of the United States Government will not permit the conviction of any person on tainted testimony. This conviction is tainted, and there can be no other just result than to accord petitioners a new trial. “It must be remembered that we are not dealing here with a motion for a new trial initiated by the defense, under Rule 33 of the Federal Rules of Criminal Procedure, [18 U.S.C.A.] presenting untruthful statements by a Government witness subsequent to the trial as newly discovered evidence affecting his credibility at the trial. Such an allegation by the defense ordinarily will not support a motion for a new trial, because new evidence which is ‘merely cumulative or impeaching’ is not, according to the often-repeated statement of the courts, an adequate" }, { "docid": "18913046", "title": "", "text": "hours is the equivalent of 7:37 p. m., Walters erred in equating it to 5:37 p. m., but his testimony clearly indicates that he used the two terms as equivalents; and his estimate of the time is supported by Grant’s account of the first visit Evans and, inferentially, Walters made to appellant’s apartment. Appellant perceives a second material discrepancy between Walters’ trial testimony and the new evidence. It will be recalled that Walters testified that he and Evans gave appellant a total of $160. Appellant contends that a report shows that Walters submitted a statement to the effect that the expenditure was only $100. We do not deem the difference to be a material contradiction of Agent Walters as he had indeed given appellant only $100. Moreover, if Walters were engaging in fraudulent claims against the Government, we would expect that his claim of expenditures in appellant’s case would have been in an amount higher than that in the report upon which appellant relies. Here, trial counsel did not withhold favorable evidence from the defense; on the contrary, he informed defense counsel of the investigation then pending against Walters. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). As the Supreme Court noted in Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956), “new evidence which is ‘merely cumulative or impeaching’ is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial.” Id. at 9, 77 S.Ct. at 5 (footnote omitted). See United States v. Johnson, 327 U.S. 106, 111 n. 5, 66 S.Ct. 464, 466 n. 5, 90 L.Ed. 562 (1946). Although the Supreme Court granted the accused a new trial in Mesarosh, it did so because it found circumstances beyond mere impeachment. The Court specifically observed that the Government itself had questioned whether the witness involved had testified truthfully at the accused’s trial. Furthermore, the present case, unlike United States v. Chisum, 436 F.2d 645, 649 (9th Cir. 1971), does not involve a conspiracy by government agents to" }, { "docid": "13715775", "title": "", "text": "before the Court. See United States v. Williams, supra, 500 F.2d at 108. Convictions were upset in United States v. Chisum, supra; United States v. Miramon, 443 F.2d 361 (9 Cir. 1971) (conviction “rests almost entirely on the testimony of Agent Saiz”); United States v. Williams, supra. The Williams series is clearly distinguishable on two grounds: 1) The narcotics agents fell into the class of professional purveyors of false charges as in Mesarosh; 2) we have carefully reviewed the evidence, as appears in the text, and failed to find in Leuci’s testimony anything like the pivotal significance of the narcotics agents’ testimony that they had bought narcotics from defendants whom they positively identified. . After agreement on this opinion by our panel, we found that another panel (Hays and Feinberg, Circuit Judges, and Holden, District Judge) had filed an opinion in United States v. Seijo and Hildebrandt, 514 F.2d 1357 (2 Cir. 4/23/75). Although counsel for appellant Rosner has not yet had time to call the slip opinion to our notice, we shall consider it sua sponte. In the Seijo case, it came to the attention of the government after the trial that its witness, Torres, had falsely testified at the trial in stating that he had never been convicted of a criminal offense prior to his arrest in the case at bar. When the United States Attorney called this to the attention of our court, the panel reversed the conviction. As in all cases involving post-conviction developments, cases must largely turn upon their own facts within the principles outlined in our opinion. As we read the opinion of the panel, the following points emerge: 1. The panel in Seijo quite properly began its assessment by stating that “In measuring the impact of the suppressed material, it is important to first consider the strength of the Government’s case apart from the evidence given by Torres.” at p. 1359. 2. “The essence of the Government’s case against both appellants resides in the testimony of Leonard Torres.” Id. at 1358; see also pp. 1363-64. 3. The connection between Torres and Seijo in" }, { "docid": "21954350", "title": "", "text": "seriously be contended that there is absent any “state action”, necessary to invoke the Fourteenth Amendment’s protection, in the procuring of a state criminal conviction. It should also be noted that the Supreme Court has, in its supervisory capacity over the federal courts, held that a new trial is required when it is discovered subsequent to trial that a key government witness in a federal criminal case was not reliable. Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed. 2d 1 (1956). The motion in that case had been made by the government. The Court recognized that ordinarily a defense motion for a new trial alleging new evidence which is “merely cumulative or impeaching” will not afford defendant a new trial. But in that case, as here, the witness’ unreliability is conceded by all parties, and it is not a ease of mere cumulative evidence. The Court, in Mesarosh, stated: “The dignity of the United States Government will not permit the conviction of any person on tainted testimony. This conviction is tainted, and there can be no other just result than to accord petitioners a new trial. ****** “The government of a strong and free nation does not need convictions based upon such testimony. * * * The interests of justice call for a reversal of the judgments below with direction to grant the petitioners a new trial.” [352 U.S. at 9, 14, 77 S.Ct. at 5, 8.] This rule has been applied in the case of a collateral attack upon a federal conviction (via 28 U.S.C. § 2255 motion), Mitchell v. United States, 368 U.S. 439, 82 S.Ct. 462, 7 L.Ed.2d 429 (1962) (per curiam), and the California Supreme Court has been urged to adopt it by at least one justice of that court. People v. Riser, 47 Cal.2d 566, 593, 305 P.2d 1 (1956) (Carter, J., dissenting), cert. denied, 353 U.S. 930, 77 S.Ct. 721, 1 L.Ed.2d 724 (1957), appeal dismissed, 358 U.S. 646, 79 S.Ct. 537, 3 L.Ed.2d 568 (1959). It is, however, under Mesarosh, still a rule applied only in the Supreme Court’s" }, { "docid": "14780011", "title": "", "text": "guilty to a misdemeanor charge of depriving a person of his civil rights, after being named in a federal grand jury indictment charging him and other agents with conspiracy, perjury, and submitting a false report. This charge arose from testimony given by him at a trial in California involving facts similar to those present here. The indictment charged that Agent Saiz’s alleged illegal activity took place during about the same time as the events which led to defendant’s arrest and trial. Saiz testified during the course of this trial that he had in the California trial signed an untrue report, and testified to the false facts contained in that report, and that he did so because of pressures from his superiors. He was extensively-cross-examined below as to this prior false testimony. Thus, all the information bearing on the credibility of the witness Saiz was brought out at defendant’s trial. The jury was faced with a choice as to whether or not they thought Saiz was telling the truth during this trial. They apparently believed that he was, and returned a verdict against the defendant. Defendant urges that we should reverse and so rule to bar the Government from using testimony from such a witness. In support of his contention that it was error to not grant his motion to bar Saiz from testifying, defendant relies primarily on the case of Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956). Mesarosh does not support defendant’s contention. In that case, the Solicitor General brought to the attention of the Supreme Court the fact that the witness Mazzei, a paid Government informer, had testified falsely in proceedings subsequent to those in which the petitioners had been convicted and asked that the case be remanded to the District Court to allow the trial judge to hold a a hearing as to the truth of Mazzei’s testimony in the pending case. The Supreme Court remanded the case for a new trial as to all defendants, holding that if Mazzei’s testimony had been false, the trial was tainted as to all" }, { "docid": "7566999", "title": "", "text": "Chisum’s residence and enter it. He saw Saiz return to his vehicle and follow another to a different location. Chisum got out of the lead car and appeared to talk to Saiz. Then Chisum went into an alley, returned, met and conversed with Saiz. Each returned to his vehicle, and the two cars drove part way around a block. Chisum and Saiz went into a bar at the nearest corner. Then Chisum again went toward an apartment complex, returned and met Saiz. Saiz left and Chisum returned to his residence. At the most, the surveilling agents’ testimony gives credibility to Saiz’s story by corroborating his testimony about his movements. But their testimony says nothing at all about any dealing in heroin between Saiz and Chisum. In support of his motion Chisum presented a certified copy of an indictment, filed July 24, 1969, in a case entitled United States v. Mendelsohn, et al, in the United States District Court for the Central District of California, case No. 4337 Criminal. That indictment contains twelve counts. Count One charges that five government narcotic agents, including Saiz and Downing, conspired, beginning on or about May 10, 1966, to corrupt justice in violation of 18 U.S.C. § 1503, to make false statements in violation of 18 U.S.C. § 1001, to commit perjury in violation of 18 U.S.C. § 1621, to suborn perjury, in violation of 18 U. S.C. § 1622, and to wilfully deprive a citizen, one Romero, of his constitutional rights in violation of 18 U.S.C. § 242. The objective was to convict Romero of violating the narcotics laws. Overt acts include: 2. “On or about May 11, 1966,” the five agents, including Saiz and Downing, “went to the area of Garvey and Meeker Streets in El Monte, California”; This is quite a different area from that where Chisum resided; 7. On or about May 18, 1966, Arthur J. Mendelsohn and Chris V. Saiz submitted a false form 184 to the Federal Bureau of Narcotics; 12. “On or about October 13, 1966, * * * Chris V. Saiz gave false testimony in the trial" }, { "docid": "8090310", "title": "", "text": "on the two occasions in question — allegations which Davis vigorously denied with respect to one of the times, and admitted but defended with an affirmative defense with respect to the other. On July 24, 1969, Saiz was indicted by a federal grand jury in the Central District of California for conspiring to corrupt justice in violation of 18 U.S.C. § 1503, to make false statements in violation of 18 U.S.C. § 1001, to commit perjury in violation of 18 U.S.C. § 1621, to suborn perjury in violation of 18 U.S.C. § 1622, and to deprive willfully one-Romero of his constitutional rights in violation of 18 U.S.C. § 242. The purpose of the Saiz conspiracy was to convict Romero of violating federal narcotics laws. Saiz pleaded guilty to count twelve of the indictment, thereby admitting the civil rights violation, and received a one year suspended sentence. The other counts — including those charging perjury — were dismissed. The period of the alleged conspiracy was May 10, 1966 until March 5, 1969, thereby encompassing the time in which the sales charged here — December 26, 1968 and February 10, 1969 — were made. A recent decision of the Ninth Circuit reviewing a case in which Saiz also testified has considered what disposition should be made of a case similar to the present one. Judge Duniway said: “We do not consider the dismissal of the other counts, obviously part of a plea bargain, as rehabilitating the veracity of Saiz or Downing for the purposes of Chisum’s case. In our opinion, this case is not governed by the ordinary rules governing motions for a new trial. Rather, it falls within the principles announced in Mesarosh v. United States, 1956, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1”. United States v. Chisum, 436 F.2d 645, 648 (9th Cir. 1971). In Mesarosh, the government advised the Supreme Court that one of its witnesses had lied in several other proceedings, and requested a remand to the district court to determine the question of the witness’ truthfulness at the trial of the Mesarosh case. Since the" }, { "docid": "7567001", "title": "", "text": "of” the case against Romero; 13. The same charge against Downing. Count Five separately charges the making of the false form 184 by Mendelsohn and Saiz on May 18, 1966 as a violation of § 1001. It charges that the form contained false statements as to their surveillance of Agent Downing in El Monte on May 10, 1966. Count Ten charges Saiz with perjury and suborning perjury in violation of §§ 1621 and 1622. It charges that certain testimony of Saiz about his surveillance of Romero and Agent Downing was perjured. Count Eleven makes a similar charge against Downing. Count Twelve charges all five agents with depriving Romero of his civil rights, in violation of § 242. The § 2255 motion of Chisum does not show what disposition was made of the case of United States v. Mendelsohn et al. We have obtained from the Clerk of the District Court copies of the judgments in the case. These show that all five defendants, including Saiz and Downing, pleaded guilty to count twelve, and the other counts against them were dismissed. Saiz and Downing pleaded and were sentenced to serve one year, suspended and probation granted on November 24, 1969. We do not consider the dismissal of the other counts, obviously part of a plea bargain, as rehabilitating the veracity of Saiz or Downing for the purposes of Chisum’s case. In our opinion, this case is not governed by the ordinary rules governing motions for a new trial. Rather, it falls within the principles announced in Mes-arosh v. United States, 1956, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1. There, the defendants had been convicted of violating the Smith Act. When the case reached the Supreme Court, the government represented to the Court that one Mazzei, a principal government witness, had given false testimony in other Smith Act cases, which raised a doubt as to his veracity in the Mesarosh case. The government said that it believed that Mazzei’s testimony in the Mesarosh case “was entirely truthful and credible,” and suggested that the case be remanded to the District Court" }, { "docid": "14780012", "title": "", "text": "he was, and returned a verdict against the defendant. Defendant urges that we should reverse and so rule to bar the Government from using testimony from such a witness. In support of his contention that it was error to not grant his motion to bar Saiz from testifying, defendant relies primarily on the case of Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956). Mesarosh does not support defendant’s contention. In that case, the Solicitor General brought to the attention of the Supreme Court the fact that the witness Mazzei, a paid Government informer, had testified falsely in proceedings subsequent to those in which the petitioners had been convicted and asked that the case be remanded to the District Court to allow the trial judge to hold a a hearing as to the truth of Mazzei’s testimony in the pending case. The Supreme Court remanded the case for a new trial as to all defendants, holding that if Mazzei’s testimony had been false, the trial was tainted as to all petitioners. They did not, however, hold that Mazzei could not testify at the new trial simply because his credibility had been brought into question. The Seventh Circuit, in United States v. Smith, 335 F.2d 898 (1964), cert. denied, 379 U.S. 989, 85 S.Ct. 700, 13 L.Ed.2d 609 (1965), interpreted Mesa-rosh, quite properly we believe, to require only that the issue of the truthfulness of the witness be presented fully to the jury. We think this interpretation is also supported by the fact that in Mesarosh, the Supreme Court cited Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003 (1956). There the Supreme Court had also remanded for a determination as to the truthfulness of testimony given before the Board by three informers, paid employees of the Department of Justice, who the Government felt might have testified falsely in that proceeding. Also in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), the Court held that the testimony and the credibility of a paid" }, { "docid": "15430945", "title": "", "text": "this last question as implicating Ziperstein, no impermissible prejudice occurred. VI Defendant Ziperstein’s final argument is that his conviction cannot stand because it was based on “perjured” testimo ny. Several clinic employees testified at trial that Ziperstein had pressured them to add unnecessary tests to requisition forms. These employees had previously testified before the Grand Jury that they had not made any such additions or had given other contradictory testimony. Several of these witnesses admitted on the stand that they had lied to the Grand Jury. Building on this factual basis, Ziperstein contends that Mesarosh v. United States, 352 U.S. 1, 77 5. Ct. 1, 1 L.Ed.2d 1 (1956), requires reversal of a conviction where witnesses whose testimony was necessary to prove an element of the offense were shown to have previously given contradictory testimony under oath. Accordingly, Ziperstein argues, his conviction must be reversed. We think that Ziperstein has clearly misread Mesarosh. In Mesarosh, a Smith Act prosecution, it was learned before Supreme court review that one witness who had testified at trial had subsequently given wholly contradictory testimony to a legislative committee. The Solicitor General thus admitted that he had reason to doubt the truthfulness of that witness’s testimony and, as a result, asked that the Supreme Court remand the case to the trial court for a determination as to the truthfulness of the witness at trial. The Supreme Court declined to remand for such a determination, stating: It might be different if we could see in this case any factual issue upon which the District Court, on a remand, could make an unassailable finding that Mazzei’s other falsehoods were differentiated from his testimony herein. But it is not within the realm of reason to expect the district judge to determine, as the Government indicated it would ask him to do, that the witness Mazzei testified truthfully in this case in 1953 as an undercover informer concerning the activities of the Communist conspiracy, yet concurrently appeared in the same role in another tribunal and testified falsely — possibly because of a psychiatric condition — about a plan by" }, { "docid": "7567005", "title": "", "text": "the waters of justice are not polluted. Pollution having taken place here, the condition should be remedied at the earliest opportunity. ****** “The government of a strong and free nation does not need convictions based upon such testimony. It cannot afford to abide with them. The interests of justice call for a reversal of the judgments below with direction to grant the petitioners a new trial.” (P. 14, 77 S.Ct. p. 8.) (Footnotes omitted.) This case differs from Mesarosh in one respect. There, as the Chief Justice emphasized, it was the government which brought Mazzei’s perjury to the Court’s attention. In our case, it is the defend ant who has done so. But what is before us is not the usual case in which a defendant asserts that a witness has perjured himself. Here, it is the government itself that brought the charge against Saiz and Downing. And the charge concerns another narcotics case that was being investigated by the same agents at the same time that they were investigating Chisum. Saiz testified against Romero in October, 1966. He testified against Chisum in September, 1967. But the subject matter of his testimony in both cases related to contemporaneous and somewhat similar events. We hold that Chisum’s conviction is as much tainted as was the conviction in Mesarosh. The order is reversed and the matter is remanded with directions to vacate the judgment of conviction and grant Chisum a new trial." }, { "docid": "13715773", "title": "", "text": "have remembered it as contradicting a witness’ testimony concerning impeachment matters, would appear to stretch the doctrine too far. Inadvertent failure to turn over 3500 material is, as we have seen, governed by a less stringent standard than is deliberate failure, and we think, so is inadvertent failure to correct a witness’ testimony on collateral matters. . Judge Weinfeld’s words in United States v. Marquez, 363 F.Supp. 802 (S.D.N.Y.1973), aff'd on opinion below, 490 F.2d 1383 (2 Cir. 1974), regarding the government’s failure to uncover perjury by a witness are equally appropriate here: “The government agents can hardly be accused of suppressing information which they did not possess. There is no basis for suggesting, as movant does, that the FBI and the United States Attorney had an obligation to pursue the question of whether [the witness] had in fact [performed the alleged misconduct] and should not have accepted his denials at face value. The issue was totally unrelated to the guilt or innocence of the defendants . . 363 F.Supp. at 806. .' Rosner did not call Lawrence at the hearing. . Appellant cites Williams v. United States, 500 F.2d 105 (9 Cir. 1974) as “dispositive of this appeal.” Williams was one of a number of appeals from motions denying a new trial in narcotics convictions where five narcotics agents of the Salt Lake City office of the B.N. D.D. had pleaded guilty to violating the civil rights of a narcotics defendant, one Romero, by committing perjury at his trial. United States v. Mendelsohn et al., Crim.No.4337 (C.D.Cal.1969) (described in United States v. Chisum, 436 F.2d 645, 647-48 (9 Cir. 1971)). These agents had been key witnesses against narcotics defendants, their respective identifications of the defendant in each case being important to his conviction. Relying on Mesarosh v. United States, supra, the Ninth Circuit granted new trials in several cases where it appeared that the perjury of which the agents were themselves convicted as a violation of civil rights were in investigations similar in nature and contemporaneous in time to the investigation of the particular narcotics defendant whose conviction was" }, { "docid": "21954349", "title": "", "text": "process even when the prosecution was unaware of the perjury. In Jones v. Kentucky, 97 F.2d 335 (6th Cir. 1938), it was held that a state is constitutionally required to provide a corrective remedy upon discovery of the perjury, and, absent such a remedy, federal habeas relief will be granted. There the state courts had held they lacked jurisdiction to grant the relief sought. The prosecutor did not know at the time of the trial that the testimony was false, and there was no suggestion that he should have known. Nevertheless, the United States Court of Appeals granted relief. See also, Smith v. Warden, Maryland Penitentiary, 254 F.Supp. 805 (D. Md. 1966); United States ex rel. Montgomery v. Ragen, 86 F.Supp. 382, 390 (N.D.Ill.1949). The position that a criminal conviction founded in part upon perjured testimony cannot be constitutionally permitted to stand, whether such perjury is discovered prior or subsequent to trial, is therefore not without authority. The prejudice resulting to a defendant so convicted is not eliminated by the state’s ignorance. Nor can it seriously be contended that there is absent any “state action”, necessary to invoke the Fourteenth Amendment’s protection, in the procuring of a state criminal conviction. It should also be noted that the Supreme Court has, in its supervisory capacity over the federal courts, held that a new trial is required when it is discovered subsequent to trial that a key government witness in a federal criminal case was not reliable. Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed. 2d 1 (1956). The motion in that case had been made by the government. The Court recognized that ordinarily a defense motion for a new trial alleging new evidence which is “merely cumulative or impeaching” will not afford defendant a new trial. But in that case, as here, the witness’ unreliability is conceded by all parties, and it is not a ease of mere cumulative evidence. The Court, in Mesarosh, stated: “The dignity of the United States Government will not permit the conviction of any person on tainted testimony. This conviction is tainted," }, { "docid": "8090311", "title": "", "text": "in which the sales charged here — December 26, 1968 and February 10, 1969 — were made. A recent decision of the Ninth Circuit reviewing a case in which Saiz also testified has considered what disposition should be made of a case similar to the present one. Judge Duniway said: “We do not consider the dismissal of the other counts, obviously part of a plea bargain, as rehabilitating the veracity of Saiz or Downing for the purposes of Chisum’s case. In our opinion, this case is not governed by the ordinary rules governing motions for a new trial. Rather, it falls within the principles announced in Mesarosh v. United States, 1956, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1”. United States v. Chisum, 436 F.2d 645, 648 (9th Cir. 1971). In Mesarosh, the government advised the Supreme Court that one of its witnesses had lied in several other proceedings, and requested a remand to the district court to determine the question of the witness’ truthfulness at the trial of the Mesarosh case. Since the government’s statement raised a doubt about the witness’ veracity, the Supreme Court, exercising its supervisory jurisdiction over federal courts, viewed the matter as sufficiently serious to require a new trial. Similarly, the Ninth Circuit granted a new trial in Chisum. While we make no holding on this issue in this case, we do express concern regarding the handling of such possibly tainted evidence in a federal prosecution. The judgment of the district court will be reversed, and the case remanded for a new trial. Appendix THE COURT: So you promptly jumped onto the bridge and were caught, is that it? MR. HANSEN: That is not correct, your Honor. So I immediately told her the first thing that would have to be done would be that she would have to talk to her law yer and I would have to talk to him if there was anything to be done. I attempted during Thursday and Friday to talk to Mr. Van Drunen, and he was, in fact, out of town and not available until Sunday. And" }, { "docid": "2132186", "title": "", "text": "court abused its discretion in refusing to hold an evidentiary hearing to determine if other aspects of Blessing’s testimony were false. As the court observed: Typically, if a person is going to admit they lied under oath, they are not going to make a half breast of it. But under these circumstances, I can’t see what would be served by an even further examination, since the primary evidence against Mr. Mazzanti was the testimony of agents of the Government working under cover. Tr. of Dec. 19,1989 at 6. Mr. Mazzanti has offered no specific reasons why other aspects of Blessing’s testimony are suspect, and we thus agree with the assessment of the district court. Finally, we point out that, contrary to the defendant’s suggestion, any analogy to Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956), limps. As our colleagues in the Second Circuit have remarked: Mesarosh is a sui generis case involving “that rare situation where a key witness ... had been conceded by the government to have testified ... in such a bizarre fashion as to raise the inference that he was either an inveterate perjurer or a disordered mind.” United States v. Stofsky, 527 F.2d 237, 246 (2d Cir.1975) (quoting United States v. Rosner, 516 F.2d 269, 279-80 (2d Cir.1975), cert. denied, 427 U.S. 911, 96 S.Ct. 3198, 49 L.Ed.2d 1203 (1976)) (citation omitted), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 66, 50 L.Ed.2d 80 (1976). The only other situation we have found in which appellate courts have applied Mesarosh to require a new trial is typified by Williams v. United States, 500 F.2d 105 (9th Cir.1974). In that case, the court reversed the denial of habe-as relief because the government witness at the original trial had later pled guilty to one count of a multi-count indictment that included perjury. Id. at 106. The court in Williams held that “[a] conviction based substantially upon tainted evidence cannot stand.” Id. at 108. Mr. Mazzanti’s conviction was not “based substantially upon tainted evidence.” Conclusion For the foregoing reasons, we affirm the judgment of" }, { "docid": "7567004", "title": "", "text": "basis for the grant of a new trial. “Here we have an entirely different situation. The witness Mazzei was a paid informer of the Government — he had been in its employ from 1942 to 1953 for the purpose of infiltrating the Communist Party and reporting the facts found. He testified in this case in that capacity, as a Government witness. It is the Government which now questions the credibility of its own witness because in other proceedings in the same field of activity he gave certain testimony — some parts of it positively established as untrue and other parts of it believed by the Solicitor General to be untrue. (Pp. 9-10, 77 S.Ct. pp. 5-6.) ****** “Mazzei, by his testimony, has poisoned the water in this reservoir, and the reservoir cannot be cleansed without first draining it of all impurity. This is a federal criminal case, and this Court has supervisory jurisdiction over the proceedings of the federal courts. If it has any duty to perform in this regard, it is to see that the waters of justice are not polluted. Pollution having taken place here, the condition should be remedied at the earliest opportunity. ****** “The government of a strong and free nation does not need convictions based upon such testimony. It cannot afford to abide with them. The interests of justice call for a reversal of the judgments below with direction to grant the petitioners a new trial.” (P. 14, 77 S.Ct. p. 8.) (Footnotes omitted.) This case differs from Mesarosh in one respect. There, as the Chief Justice emphasized, it was the government which brought Mazzei’s perjury to the Court’s attention. In our case, it is the defend ant who has done so. But what is before us is not the usual case in which a defendant asserts that a witness has perjured himself. Here, it is the government itself that brought the charge against Saiz and Downing. And the charge concerns another narcotics case that was being investigated by the same agents at the same time that they were investigating Chisum. Saiz testified against Romero" } ]

[ { "docid": "7798552", "title": "", "text": "of appellee described the device’s novel contribution to the industry as: “The first commercially successful, inexpensive integrated shipping closure pump unit which permitted automated assembly with a container of household insecticide or similar liquids to produce a practical, ready-to-use package which could be shipped without external leakage and which was so organized that the pump unit with its hold-down cap could be itself assembled and sealed and then later assembled and sealed on the container without breaking the first seal.” Validity of the Patent. The statute provides that a patent shall be presumed valid and the burden of establishing invalidity rests on the party asserting it. 35 U.S.C.A. § 282. The issue of patentability of a new combination of old elements to form invention must, however, be approached keeping in mind the more exacting standard long required by the Supreme Court. In Selmix Dispensers, Inc. v. Multiplex Faucet Co., Inc., 277 F.2d 884 (8th Cir. 1960), we recognized the Supreme Court’s admonition in Great Atlantic and Pacific Tea Co. v. Super-Market Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950) that “The conjunction or concert of known elements must contribute something; only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable.” See also Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 90, 62 S.Ct. 37, 86 L.Ed. 58 (1941); Lincoln Engineering Co. of Illinois v. Stewart-Warner Corp., 303 U.S. 545, 549, 58 S.Ct. 662, 82 L.Ed. 1008 (1938) ; Caldwell v. Kirk Mfg. Co., 269 F.2d 506 (8th Cir. 1959), cert. denied 361 U.S. 915, 80 S.Ct. 260, 4 L.Ed.2d 185 (1959); Briggs & Stratton Corp. v. Clinton Machine Co., Inc., 247 F.2d 397 (8th Cir. 1957), cert. denied 355 U.S. 914, 78 S.Ct. 344, 2 L.Ed.2d 274 (1958). Factual comparison of the individual elements of the Cook-Bakan 2 sprayer unit with prior art would permit a finding that its components are not novel per se — threaded over-cap depressing sprayer head (Lohse Pat. No. 2,119,884) ; complementary threaded collar (Lohse Pat. No." } ]

[ { "docid": "17802240", "title": "", "text": "was withheld with an intent to defraud the PTO or that such conduct breached the duty of candor. INFRINGEMENT There can be two types of infringement: literal or equivalent. Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, 85 USPQ 328 (1950); see also, Great Northern Corp. v. Davis Core & Pad Co., Inc., 782 F.2d 159, 165-166, 228 USPQ 356 (Fed.Cir.1986); Loctite Corp. v. Ultraseal, LTD., 781 F.2d 861, 865-870, 228 USPQ 90 (Fed.Cir.1985); Datascope Corp. v. SMEC, Inc., 776 F.2d 320, 324-326, 226 USPQ 402 (Fed.Cir.1985); King Instrument Corp. v. Otari Corp., 767 F.2d 853, 862, 226 USPQ 402 (Fed.Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1197, 89 L.Ed.2d 312 (1986); Radio Steel & Mfg. Co. v. MTD Products, Inc., 731 F.2d 840, 847, 221 USPQ 657 (Fed.Cir.1984), cert. denied, 469 U.S. 831, 105 S.Ct. 119, 83 L.Ed.2d 62 (1984); Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1360-1366, 219 USPQ 473 (Fed. Cir.1983). The party alleging infringement has the “burden of proving infringement by a preponderance of the evidence.” Hughes Aircraft, 717 F.2d at 1361, citing, Roberts Dairy Co. v. United States, 182 USPQ 218, 227 (Trial Div., Ct.Cl.1974), aff'd, 530 F.2d 1342, 1357, 198 USPQ 383 (Ct.Cl.1976). Defendant’s Generation I CDI System The plaintiff alleges that claims 1-5 of the ’837 patent are infringed by all the defendant’s Generation I CDI systems manufactured or sold after July 19, 1977. Literal Infringement analysis begins by looking at the language of the claims asserted. (Appendix E) King Instrument, 767 F.2d at 862. Further, “[p]atent infringement is determined by a comparison of the claims of the patent with the accused device of the infringer.” Darda, Inc., USA v. Majorette Toys (U.S.), Inc., 627 F.Supp. 1121, 1136, 229 USPQ 103 (S.D.Fla. 1986), citing, Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 221 USPQ 649 (Fed. Cir.1984), cert. denied, 469 U.S. 924, 105 S.Ct. 306; 83 L.Ed.2d 240, 244 USPQ 616 (1984); ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 221 USPQ 929 (Fed.Cir.1984). The claims at" }, { "docid": "6203220", "title": "", "text": "skilled in the art to which it pertains to make and use it. It further requires that the patentee must disclose his best method and composition. If he fails to do so, or the claims are so broad as to cover inoperative subject matter, the patent is invalid for indefiniteness and for over claiming. Permutit Co. v. Graver Corp., 284 U.S. 52, 60, 52 S.Ct. 53, 76 L.Ed. 163 (1931) Halliburton Oil Well Cementing Co. v. Walker, 329 U.S. 1, 13, 67 S.Ct. 6, 91 L.Ed. 3 (1946) Graver Tank & Mfg. Co. v. Linde Air Prod. Co., 75 U.S.P.Q. 231, aff’d. 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672 (1949) Deep Welding, Inc. v. Sciaky Bros., Inc., 417 F.2d 1227 (7th Cir., 1969) Pemco Products, Inc. v. General Mills, Inc., 261 F.2d 302 (6th Cir., 1958) Libbey-Owens Ford Glass Co. v. Celanese Corporation, 135 F.2d 138 (6th Cir., 1943) 7. The claims of a patent are the sole measure of the grant. Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 339-340, 81 S.Ct. 599, 5 L.Ed.2d 592 (1961) Universal Oil Prod. Co. v. Globe Oil & Refining Co., 322 U.S. 471, 484-485, 64 S.Ct. 1110, 88 L.Ed. 1399 (1944) Milcor Steel Co. v. George A. Fuller Co., 316 U.S. 143, 145-146, 62 S.Ct. 969, 86 L.Ed. 1332 (1942) 8. Claims of a patent which fail to include one or more elements essential or critical to practice the invention are invalid. Permutit Co. v. Graver Corp., 284 U.S. 52, 58, 52 S.Ct. 53, 76 L.Ed. 163 (1931) Technograph Printed Circuits Ltd. v. Bendix Aviation Corp., 218 F.Supp. 1, 44 (D.Md., 1963), aff’d. per curiam, 327 F.2d 497 (4th Cir., 1964) 9. A patent claim may not be given a narrow construction consistent with the disclosure of the patent to avoid the prior art or establish patentable invention and then be given a broad construction to embrace an accused device. Graham v. John Deere Co., 383 U.S. 1, 33, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966) Skirow Bros. v. Roberts Colonial House, Inc., 361 F.2d 388, 391" }, { "docid": "3256725", "title": "", "text": "infringed by appellant. This patent was later dropped from the ease on tbe ground that there was no actual controversy as to it. . Claim 6 reads as follows: “The method of making a halftone negative free from screen pattern in the highlights which comprises mixing with the pigment from which the subject to be reproduced is to be made an absorbent of ultra-violet light, photographing the subject so made on a ligbt-sensitive element with a halftone screen in normal relation thereto, removing the screen, and then making a second photographic exposure of the subject upon said light-sensitive element with ultra-violet light only.” . An angstrom unit is the unit used to express the length of light waves; it is one-tenth of a millimicron, or one ten-millionth of a millimeter. Light having wave-lengths of below approximately 4000 angstrom units is invisible to the naked eye. . Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097; Faulkner v. Gibbs, 9 Cir., 170 F.2d 34, affirmed 338 U.S. 267, 70 S.Ct. 25, 94 L.Ed. 62; Refrigeration Engineering v. York Corporation, 9 Cir., 168 F.2d 896, certiorari denied 335 U.S. 859, 69 S.Ct. 133, 93 L.Ed. 406; Ralph N. Brodie Co. v. Hydraulic Press Mfg. Co., 9 Cir., 151 F.2d 91. . United States v. Esnault-Pelterie, 303 U.S. 26, 30, 58 S.Ct. 412, 82 L.Ed. 625; Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 36, 50 S.Ct. 9, 74 L.Ed. 147; Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 153, 71 S.Ct. 127, 95 L.Ed. 162; Stuart Oxygen Co. v. Josephian, 9 Cir., 162 F.2d 857, 859; Hanovia Chemical & Mfg. Co. v. David Buttrick Co., 1 Cir., 127 F.2d 888, 889-891; Galland-Henning Mfg. Co. v. Logemann Bros. Co., 7 Cir., 142 F.2d 700, 704, certiorari denied 323 U.S. 767, 65 S.Ct. 120, 89 L.Ed. 614; cf. Chas. H. Lilly Co. v. I. F. Laucks, Inc., 9 Cir., 68 F.2d 175, 186, certiorari denied 293 U.S. 573, 55 S.Ct. 84, 79 L.Ed. 671; Wire Tie Mach. Co. v." }, { "docid": "16085663", "title": "", "text": "Tea Co. v. Supermarket Equip. Corp., 1950, 340 U.S. 147, 152-153, 71 S.Ct. 127, 95 L.Ed. 162; Graham v. John Deere Co., 1966, 383 U.S. 1, 10-19, 86 S.Ct. 684, 15 L.Ed.2d 545. Cf. Sears, Roebuck & Co. v. Stippel Co., 1964, 376 U.S. 225, 228-231, 84 S.Ct. 784, 11 L.Ed.2d 661. The Courts of Appeals have repeatedly applied the same policy in cases involving patent-ability. John Deere Co. v. Graham, 8 Cir., 1964, 333 F.2d 529, 535; affirmed, Graham v. John Deere Co., 1966, 383 U.S. 1, 86 S.Ct. 684; Rota-Carb Corp. v. Frye Mfg. Co., 8 Cir., 1963, 313 F.2d 443, 444; Caldwell v. Kirk Mfg. Co., 8 Cir., 1959, 269 F.2d 506, 508; Houston Oil Field Material Co. v. Claypool, 5 Cir., 1959, 269 F.2d 134, 136; Long v. Arkansas Foundry Co., 8 Cir., 1957, 247 F.2d 366, 369; Hycon Mfg. Co. v. H. Koch & Sons, 9 Cir., 1955, 219 F.2d 353, 355-56; Bulldog Elec. Prod. Co. v. Westinghouse Elec. Corp., 2 Cir., 1947, 162 F.2d 994, 997. . Pennington Engineering Co. v. Spicer Mfg. Co., 6 Cir., 1947, 165 F.2d 59, 61; Wabash Corp. v. Ross Elec. Corp., 2 Cir., 1951, 187 F.2d 577, 581-583; Patent Scaffolding Co. v. Up-Right, Inc., 9 Cir., 1952, 194 F.2d 457, 459-462; Kierulff v. Metropolitan Stevedore Co., 9 Cir., 1962, 300 F.2d 614, 615-616. . Helbush v. Finkle, 9 Cir., 1948, 170 F.2d 41, 42; Patent Scaffolding Co. v. UpRight, Inc., supra, n. 2; Kemart Corp. v. Printing Arts Research Labs, Inc., 9 Cir., 1953, 201 F.2d 624, 634; Hutchens v. Faas, 9 Cir., 1957, 249 F.2d 465, 467; Wabash Corp. v. Ross Electric Corp., supra, n. 2, and see the dissent of Judge Frank, 187 F.2d 586 ff. . See Hutchens v. Faas, supra, n. 3; Wabash Corp. v. Ross Elec. Corp., supra, n. 2. . Helbush v. Finkle, supra, n. 3; Wabash Corp. v. Ross Elec. Corp., supra, n. 2; Hycon Mfg. Co. v. H. Koch & Sons, supra, n. 1; Long v. Arkansas Foundry Co., supra, n. 1. . Pennington Engineering Co. v. Spicer Mfg. Corp.," }, { "docid": "18008618", "title": "", "text": "497, 502-503; Koochook Co., Inc. v. Barrett, 8 Cir., 158 F.2d 463; Hall Laboratories, Inc. v. Economics Laboratory, Inc., 8 Cir., 169 F.2d 65; Alemite Co. v. Jiffy Lubricator Co., 8 Cir., 176 F.2d 444; Miller v. Tilley, 8 Cir., 178 F.2d 526; MinneapolisMoline Co. v. Massey-Harris Co., 8 Cir., 208 F.2d 73; and Steffan v. Weber Heating and Sheet Metal Co., 8 Cir., 237 F.2d 601. See also: Blish, Mize & Silliman Hardware Co. v. Time Saver Tools, Inc., 10 Cir., 236 F.2d 913-916. Implications in support of the conclusion of the District Court that both patents in suit are invalid, we think reasonably may be drawn from comparatively recent cases decided by the Supreme Court, such as Detrola Radio & Television Corp. v. Hazeltine Corp., 313 U.S. 259, 267-269, 61 S.Ct. 948, 85 L.Ed. 1319; Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 88-92, 62 S.Ct. 37, 86 L.Ed. 58; Muncie Gear Works, Inc. v. Outboard, Marine & Mfg. Co., 315 U.S. 759, 768, 62 S.Ct. 865, 86 L.Ed. 1171; Goodyear Tire & Rubber Co., Inc. v. Ray-O-Vac Co., 321 U.S. 275, 279, 64 S.Ct. 593, 88 L.Ed. 721 (in which a patent was sustained by a 5 to 4 decision in an opinion by the late Mr. Justice Roberts, which met with a strong dissent); Dow Chemical Co. v. Halliburton Oil Well Cementing Co., 324 U.S. 320, 328, 330, 65 S.Ct. 647, 89 L.Ed. 973; Sinclair & Carroll Co., Inc. v. Interchemical Corp., 325 U.S. 327, 330-331, 65 S.Ct. 1143, 89 L.Ed. 1644; Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 131-132, 68 S.Ct. 440, 92 L.Ed. 588 ; Mandel Brothers, Inc. v. Wallace, 335 U. S. 291, 295-296, 69 S.Ct. 73, 93 L.Ed. 12; Jungersen v. Ostby & Barton Co., 335 U. S. 560, 566-567, page 572, 69 S.Ct. 269, 274, 93 L.Ed. 235 (in which the late Mr. Justice Jackson said in his dissenting opinion: “But I doubt that the remedy for such Patent Office passion for granting patents is an equally strong passion in this Court for striking them" }, { "docid": "11997239", "title": "", "text": "L.Ed. 1088; Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U.S. 386, 54 S.Ct. 732, 78 L.Ed. 1318; William Jameson & Co. v. Morgenthau, 307. U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189. . Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411; KYOS, Inc. v. Associated Press, 299 U.S. 269, 279, 57 S.Ct. 197, 81 L.Ed. 183; U. S. v. Mitchell, 271 U.S. 9, 14, 46 S.Ct. 418, 70 L.Ed. 799. See also Tefft, Weller & Co. v. Munsuri, 222 U.S. 114, 119-120, 32 S.Ct. 67, 56 L.Ed. 118; St. Louis V. & T. H. R. v. Terre Haute R. Co., 145 U.S. 393, 403-404, 12 S.Ct. 953, 36 L.Ed. 748; U. S. v. More, 3 Cranch 159, 172, 2 L.Ed. 397; The Edward, 1 Wheat. 261, 275-276, 4 L.Ed. 86. . See, e.g., Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 330, 65 S.Ct. 1143, 89 L.Ed. 1644; Muncie Gear Co. v. Outboard Co., 315 U.S. 759, 768, 62 S.Ct. 865, 86 L.Ed. 1171; Hazel-Atlas Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250; Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 670, 64 S.Ct. 268, 88 L.Ed. 376; Brown v. Piper, 91 U.S. 37, 44, 23 L.Ed. 200; Nachman Spring-Filled Corp. v. Kay Mfg. Co., 2 Cir., 139 F.2d 781, 783; Root Refining Co. v. Universal Oil Products Co., 3 Cir., 169 F.2d 515; Cridlebaugh v. Rudolph, 3 Cir., 131 F.2d 795, 800. . U. S. v. Esnault-Pelterie, 299 U.S. 201, 205, 57 S.Ct. 159, 81 L.Ed. 123; Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275, 69 S.Ct. 535, 93 L.Ed. 672; Graver Mfg. Co. v. Linde Co., 339 U.S. 605, 609, 611, 70 S.Ct. 854, 94 L.Ed. 1097; Great A. & P. Tea Co. v. Supermarket Co., 340 U.S. 147, 153-154, 71 S.Ct. 127; Minnesota Mining & Mfg. Co. v. Coe, 75 U.S.App.D.C. 131, 125 F.2d 198, 199; Refrigeration Engineering Inc. v. York Corp., 9 Cir., 168 F.2d 896, 900. . Refrigeration Engineering, Inc. v. York Corp., 9 Cir.," }, { "docid": "20789131", "title": "", "text": "valid under the provisions of the Patent Laws, Title 35, United States Code. 4. Claims 1 and 9 of the Bradt patent have been and are being infringed by defendant DuPont’s manufacture, use and/or sale of its glass-reinforced “Zytel” nylon injection molding compounds. 5. Claims 8 and 9 of the Bradt patent have been and are being infringed by defendant DuPont’s manufacture, use and/or sale of its glass-reinforced “Alathon” polyethylene injection molding compounds. 6. Claim 9 of the Bradt patent has been and is being infringed by defendant DuPont’s manufacture, use and/or sale of its glass-reinforced “Delrin” polyacetal injection molding compounds. 7. A regularly issued patent is presumed to be valid. 35 U.S.C. § 282. Such presumption of validity can be overcome only by strong and convincing proof. Radio Corporation of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 55 S.Ct. 928, 79 L.Ed. 163 (1939); Mumm v. Jacob E. Decker & Sons, 301 U.S. 168, 57 S.Ct. 675, 81 L. Ed. 983 (1937); Eversharp, Inc. v. Fisher Pen Co., 204 F.Supp. 649, 671 (N.D.Ill.1961); Allied Research Products, Inc. v. Heatbath Corp., 300 F.Supp. 656 (N.D.Ill.1969). 8. The presumption of validity is more difficult to overcome when the defendant fails to proffer art more pertinent than that considered by the Patent Office. Hazeltine Research v. Admiral Corp., 87 F.Supp. 72, 78 (N.D.Ill.1949), aff’d, 183 F.2d 953 (7th Cir. 1950) , cert. denied, 340 U.S. 896, 71 S. Ct. 239, 95 L.Ed. 650 (1950); Ransburg Electro-Coating Corp. v. Nordson Corporation, 293 F.Supp. 448 (N.D.Ill.1968); Bela Seating Company Inc. v. Poloron Products, Inc., 297 F.Supp. 489, 507 (N.D.Ill.1968); AMP Inc. v. Vaco Products Co., 280 F.2d 518, 521 (7th Cir. 1960); Leach v. Roekwood & Co., 404 F.2d 652 (7th Cir. 1968). 9. Utility, within the meaning of the Patent Laws means that the object of the patent is capable of performing some beneficial function claimed for it. Seymour v. Osborne, 78 U.S. 516, 20 L.Ed. 33 (1871); Smith v. Nichols, 88 U.S. 112, 22 L.Ed. 566 (1875); National Slug Rejectors v. A. B. T. Mfg. Corporation, 164 F.2d 333, 335" }, { "docid": "12363399", "title": "", "text": "using a single head plate. So many examples exist in the prior art that only a representative few were inserted in the record evidence. Examples are Tanzi Patent No. 1,228,495 (1922), machine for making macaroni; Sizer Patent No. 1,402,672 (1922), machine for making food cubes from meal for animals; Sizer Patent No. 1,773,552 (1930), machine for making pellets for poultry food; Schreiber Patent No. 2,583,600 (1952), machine for making food from combinations containing as much as 50% molasses and 50% dry ingredients. The synthesis of the patent in suit is, therefore, an amalgam of known elements. Plaintiff’s “union” of these old elements produced nothing new, surprising, or novel, perform no new function and add nothing to useful knowledge found or taught in the prior art. In Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950), the Supreme Court quoted with approval from its earlier opinion in Lincoln Engineering Co. of Illinois v. Stewart-Warner Corp., 303 U.S. 545, 549, 58 S.Ct. 662, 82 L.Ed. 1008 (1938): “The mere aggregation of a number of old parts or elements which, in the aggregation, perform or produce no new or different function or operation than that theretofore performed or produced by them, is not patentable invention.” 340 U.S. at 151, 71 S.Ct. at 130. The Court, citing Toledo Pressed Steel Co. v. Standard Parts, Inc., 307 U.S. 350, 59 S.Ct. 897, 83 L.Ed. 1334 (1939) and Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58 (1941), continued: “The conjunction or concert of known elements must contribute something; only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable.” 340 U.S. at 152, 71 S.Ct. at 130. See also Selmix Dispensers, Inc. v. Multiplex Faucet Co., 277 F.2d 884 (8th Cir. 1960); Caldwell v. Kirk Mfg. Co., supra; Briggs & Stratton Corp. v. Clinton Machine Co., 247 F.2d 397 (8th Cir. 1957), cert. denied, 355 U.S. 914, 78 S.Ct. 344, 2 L.Ed.2d 274 (1958). Plaintiff originally supported his" }, { "docid": "11997245", "title": "", "text": "Linde Mfg. Co., 336 U.S. 271, 275, 69 S.Ct. 535, 93 L.Ed. 672;. Graver Mfg. Co. v. Linde Mfg. Co., 339 U.S. 605, 609-611, 70 S.Ct. 864, 94 L.Ed. 1097. . Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Co., 340 U.S. 147, 153-154, 71 S.Ct. 127, 131. . See U. S. v. U. S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; Orvis v. Higgins, 2 Cir., 180 F.2d 537, 539; Luckenbach S. S. Co. v. U. S., 2 Cir., 157 F.2d 250, 251; Kind v. Clark, 2 Cir., 161 F.2d 36, 46; The Coastwise, 2 Cir., 68 F.2d 720, 721; Stokes v. U. S., 2 Cir., 144, F.2d 82, 85; Norment v. Stillwell, 2 Cir., 135 F.2d 132; Pfeifer Oil Trans. Co. v. The Ira S. Bushey, 2 Cir., 129 F.2d 606, 607; Equitable Life Assurance Society of U. S. v. Irelan, 9 Cir., 123 F.2d 462, 464; Bowles v. Beatrice Creamery Co., 10 Cir., 146 F.2d 774, 780; Dollar v. Land, D.C.Cir., 184 F.2d 245, 248-249; Lauricella v. U. S., 2 Cir., 185 F.2d 327, 328; Sawyer v. McDonald, 5 Cir., 165 F.2d 426, 428; Letcher County v. DeFoe, 6 Cir., 151 F.2d 987, 990. The same may be the result when the oral testimony is virtually undisputed and abundantly corroborated by undisputed documentary evidence. Such, in effect, was the case in Smith v. Hall, 301 U.S. 216, 57 S.Ct. 711, 81 L.Ed. 1049 — which therefore is really a case of the second type. . Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 36, 50 S.Ct. 9, 74 L.Ed. 147; United States v. Esnault-Pelterie, 303 U.S. 26, 30-31, 58 S.Ct. 412, 82 L.Ed. 625; cf. Singer Mfg. Co. v. Cramer, 192 U.S. 265, 275, 24 S.Ct. 291, 48 L.Ed. 437; Altoona Theatres v. Tri-Ergon Corp., 294 U.S. 477, 55 S.Ct. 455, 79 L.Ed. 1005; Paramount Publix Corp. v. American Tri-Ergon Corp., 294 U.S. 464, 55 S.Ct. 449, 79 L.Ed. 997. See also Lewyt Corp. v. Health-Mor, Inc., 7 Cir., 181 F.2d 855, 857; Charles Peckat Mfg. Co. v. Jacobs, 7 Cir.," }, { "docid": "11923358", "title": "", "text": "596, 597 (1960), cert. denied, 366 U.S. 963, 81 S.Ct. 1925, 6 L.Ed.2d 1255 (1961); Cornell v. Adams Engineering Company, 5 Cir., 258 F.2d 874, 875 (1958). If, as urged by appellants, the trial court failed to apply the proper legal test or standard, it necessarily follows that its finding of patentability was induced by an erroneous view of the law, its finding is clearly erroneous, and the judgment based upon such finding cannot stand. Great A. & P. Tea Co. v. Supermarket Equipment Corporation, 340 U.S. 147, 153-154, 71 S.Ct. 127, 95 L.Ed. 162 (1950); Selmix Dispensers, Inc. v. Multiplex Faucet Co. (Inc.), supra, 277 F.2d at 886; Caldwell v. Kirk Manufacturing Company, supra, 269 F.2d at 508, 509. This court has adhered to the position that since Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58 (1941), “the amount of originality and ingenuity, over and beyond novelty and utility, which will constitute invention necessary to sustain a patent for a combination of old elements [such as we have here] in a crowded art, has increased.” Briggs & Stratton Corporation v. Clinton Machine Co., supra, (concurring opinion of Judge Sanborn, 247 F.2d at 401) and cases there cited. In Caldwell v. Kirk Manufacturing Company, supra, 269 F.2d at 509, Judge Sanborn again expressed the principle in this language: “More exacting standards for determining patentable invention have been applied by the courts in recent years than was formerly the case. In Trico Products Corporation v. Delman Corporation, 8 Cir., 180 F.2d 529, 533, this Court said: “ * * * ‘The Supreme Court has, we think, raised the standards of originality necessary to sustain patents for improvements such as those involved in the instant cases, regardless of their usefulness or commercial success. Compare, Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523, and Temco Electric Motor Company v. Apco Manufacturing Company, 275 U.S. 319, 48 S.Ct. 170, 72 L.Ed. 298, with Cuno Engineering Corp. v. Automatic Devices Corp., supra, 314 U.S. 84, 62 S.Ct." }, { "docid": "8413374", "title": "", "text": "to aromatic aldehydes and ends. . See n. 38; n. 39. . See n. 40. . See n. 38. Roberts-Caserio, Modern Organic Chemistry, p. 537, gives the formula for styrene: . PX 1, col. 1, line 37; Examples XXI, XXVI, XXXV, and XXXVII. . Soundscriber Corp. v. United States, 360 F.2d 954, 960 (Ct.Cl.1966) ; Preformed Line Products Co. v. Fanner Mfg. Co., 328 F.2d 265 (6 Cir.), cert. denied, 379 U.S. 846, 85 S.Ct. 56, 13 L.Ed.2d 51 (1964) ; Firestone v. Aluminum Co. of America, 285 F.2d 928 (6 Cir. 1960). Contra, McCullough Tool Co. v. Wells Surveys, Inc., 343 F.2d 381 (10 Cir. 1965), cert. denied, 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1966). . Cyclohexene would read on Claims 1, 2, 3, 4 and 13: “an unsaturated hydrocarbon from the group consisting of non-conjugated alkenes having at least three carbon atoms, cyclic terpenes, and monoaryl substituted non-conjugated alkenes.” Styrene would read on Claims 11, 12 and 15: “styrene.” Neither stilbene nor asymmetric diphenyl ethylene would read on Ritter’s claims. See nn. 38 and 39. . See Ling-Temco-Vought, Inc. v. Kollsman Instrument Corp., supra, 372 F.2d at 270; Stiegele v. J. M. Moore Import-Export Co., 312 F.2d 588 (2 Cir. 1963). . Claims 1, 2 and 3. See also PX 1, col. 2, lines 27-39. . Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). . Application of Shuman, 361 F.2d 1008 (C.C.P.A.1966) ; Application of Foster, 343 F.2d 980 (C.C.P.A.1965). . DX I, Tab 8, p. 1, fourth paragraph; p. 2, second paragraph. . DX I, Tab 8, pp. 7-8. . DX I, Tab 8, p. 8. . Application of Edge, 359 F.2d 896, 898-899 (C.C.P.A.1966). . Graver Tank & Mfg. Co. v. Linde Air Products Co., supra, 339 U.S. at 608, 70 S.Ct. 854. . Wieland and Dorrer began with cyclohexene. A chemist would know that its formula is: See Roberts-Caserio, Modern Organic Chemistry, p. 181. The formulas given in DX I, Tab 8, p. 2, do not represent steps in" }, { "docid": "16085662", "title": "", "text": "without invention will not make patentability.” See also Jeddeloh Brothers Sweed Mills, Inc. v. Coe Mfg. Co., supra, n. 7; Hensley Equip. Co., Inc. v. Esco Corp., supra, n. 7. The patent is invalid. The second paragraph of the judgment is modified to read; “It is ordered and adjudged that claims 1, 2, 6, 7, 8 and 9 of the patent in suit, No. 2,674,535 are invalid and that the action be dismissed on the merits and the defendant, John I. Haas, Inc., recover of the plaintiff its costs of action.” As so modified, the judgment is affirmed. . See also Walker Process Equip., Inc. v. Food Machinery and Chemical Corp., 1965, 382 U.S. 172, 177, 86 S.Ct. 347, 15 L.Ed.2d 247. Both Precision Instrument and Walker involved fraud on the Patent Office, resulting in the invalidity of the patent. Other decisions indicate that the policy is equally applicable in patentability cases. See Cuno Engineering Corp. v. Automatic Devices Corp., 1941, 314 U.S. 84, 91-92, 62 S.Ct. 37, 86 L.Ed. 58; Great Atlantic & Pacific Tea Co. v. Supermarket Equip. Corp., 1950, 340 U.S. 147, 152-153, 71 S.Ct. 127, 95 L.Ed. 162; Graham v. John Deere Co., 1966, 383 U.S. 1, 10-19, 86 S.Ct. 684, 15 L.Ed.2d 545. Cf. Sears, Roebuck & Co. v. Stippel Co., 1964, 376 U.S. 225, 228-231, 84 S.Ct. 784, 11 L.Ed.2d 661. The Courts of Appeals have repeatedly applied the same policy in cases involving patent-ability. John Deere Co. v. Graham, 8 Cir., 1964, 333 F.2d 529, 535; affirmed, Graham v. John Deere Co., 1966, 383 U.S. 1, 86 S.Ct. 684; Rota-Carb Corp. v. Frye Mfg. Co., 8 Cir., 1963, 313 F.2d 443, 444; Caldwell v. Kirk Mfg. Co., 8 Cir., 1959, 269 F.2d 506, 508; Houston Oil Field Material Co. v. Claypool, 5 Cir., 1959, 269 F.2d 134, 136; Long v. Arkansas Foundry Co., 8 Cir., 1957, 247 F.2d 366, 369; Hycon Mfg. Co. v. H. Koch & Sons, 9 Cir., 1955, 219 F.2d 353, 355-56; Bulldog Elec. Prod. Co. v. Westinghouse Elec. Corp., 2 Cir., 1947, 162 F.2d 994, 997. . Pennington Engineering" }, { "docid": "18350923", "title": "", "text": "determining patentable invention have been applied by the courts in recent years than was formerly the case. In Trico Products Corporation v. Delman Corporation, 8 Cir., 180 F.2d 529, 533, this Court said: “* * * it jS; no doubt, true that this Court is applying higher standards than it formerly did for determining whether patented improvements of practical value and which have met with commercial success involve invention or only mechanical skill. Compare, G. H. Packwood Mfg. Co. v. St. Louis Janitor Supply Co., 8 Cir., 115 F.2d 958, with Frank Adam Electric Co. v. Colt’s Patent Fire Arms Mfg. Co., supra, 148 F.2d 497. The Supreme Court has, we think, raised the standards of originality necessary to sustain patents for improvements such as those involved in the instant cases, regardless of their usefulness or commercial success. Compare, Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523, and Temco Electric Motor Company v. Apco Manufacturing Company, 275 U.S. 319, 48 S.Ct. 170, 72 L.Ed. 298, with Cuno Engineering Corp. v. Automatic Devices Corp., supra, 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58.” See also Hall Laboratories, Inc. v. Economics Laboratory, Inc., 8 Cir., 169 F.2d 65; Alemite Co. v. Jiffy Lubricator Co., 8 Cir., 176 F.2d 444, 448-449; Miller v. Tilley, 8 Cir., 178 F.2d 526, 528; Steffan v. Weber Heating & Sheet Metal Co., 8 Cir., 237 F.2d 601, 604; and the concurring opinion in Briggs & Stratton Corp. v. Clinton Machine Co., Inc., 8 Cir., 247 F.2d 397, 400-401. The vital question in this case is whether the Kirk device for oiling animals — or, rather, for enabling the animals to oil themselves — advanced that art sufficiently to entitle Kirk to a patent monopoly for his device. The Kirk device consists of: A large horizontal base made up of interconnected tubular members ; a centrally-located, hollow, upright, metal cylindrical tank, supported by and fastened to the base. The tank serves as a reservoir for insecticide or oil, and as a support for the rubbing and oiling" }, { "docid": "11923357", "title": "", "text": "35 U.S.C. § 282; e. g., Radio Corporation of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 7-8, 55 S.Ct. 928, 79 L.Ed. 163 (1934); Steffan v. Weber Heating and Sheet Metal Company, 8 Cir., 237 F.2d 601, 602 (1956). It is equally clear, however, that the presumption of validity is a rebut-table one, that when substantial evidence attacking the validity of a patent is introduced, the question whether the patent constitutes an invention is for the court, Steffan v. Weber Heating and Sheet Metal Company, supra, 237 F.2d at 602; Continental Farm Equipment Co. v. Love Tractor, 8 Cir., 199 F.2d 202, 204 (1952), cert. denied, 345 U.S. 909, 73 S.Ct. 649, 97 L.Ed. 1344 (1953), and that the presumption of validity is weakened if applicable prior art is not considered by the Patent Office. L. S. Donaldson Company v. La Maur, Inc., 8 Cir., 299 F.2d 412, 420 (1962), cert. denied, 371 U.S. 815, 83 S.Ct. 27, 9 L.Ed.2d 57 (1962); Day-Brite Lighting, Inc. v. Sandee Manufacturing Co., 7 Cir., 286 F.2d 596, 597 (1960), cert. denied, 366 U.S. 963, 81 S.Ct. 1925, 6 L.Ed.2d 1255 (1961); Cornell v. Adams Engineering Company, 5 Cir., 258 F.2d 874, 875 (1958). If, as urged by appellants, the trial court failed to apply the proper legal test or standard, it necessarily follows that its finding of patentability was induced by an erroneous view of the law, its finding is clearly erroneous, and the judgment based upon such finding cannot stand. Great A. & P. Tea Co. v. Supermarket Equipment Corporation, 340 U.S. 147, 153-154, 71 S.Ct. 127, 95 L.Ed. 162 (1950); Selmix Dispensers, Inc. v. Multiplex Faucet Co. (Inc.), supra, 277 F.2d at 886; Caldwell v. Kirk Manufacturing Company, supra, 269 F.2d at 508, 509. This court has adhered to the position that since Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58 (1941), “the amount of originality and ingenuity, over and beyond novelty and utility, which will constitute invention necessary to sustain a patent for a combination of old elements [such as" }, { "docid": "254397", "title": "", "text": "even though they differ in name, form or shape.’ ” Graver Tank & Manufacturing Company, Inc., v. Linde Air Products Company, 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097; Chicago Pneumatic Tool Co. v. Hughes Tool Co., 10 Cir., 97 F.2d 945, 947; Hunt v. Armour & Co., 7 Cir., 185 F.2d 722, 728; Royal Typewriter Co. v. Remington Rand, 2 Cir., 168 F.2d 691, 692. Furthermore, in view of the District Court’s findings being based on a demonstration of the Graham and Jeoffroy devices in actual operation, we cannot say that his finding of infringement is clearly erroneous. Graver Tank & Mfg. Co., Inc., v. Linde Air Products Co., supra, 339 U.S. at pages 609-610, 70 S.Ct. 854; see also Hazeltine Research v. Admiral Corp., 7 Cir., 183 F.2d 953, 954. As Judge Lindley, speaking for the Seventh Circuit, in the recent case of Porter-Cable Machine Co. v. Knives & Saws, Inc., 204 F.2d 21, 23-24, has appropriately stated: “The court heard expert witnesses, viewed demonstrations and concluded that this element was new in Heckrotli’s combination; that he achieved valuable advantages over the prior art, resulting in invention, and that defendant infringes. In view of this state of the record, of course, we can not set aside the finding of validity unless it is clearly erroneous, Graver Tank Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 93 L.Ed. 672, or unless we can say, as a matter of law, that, on the admitted facts, the standard of patentable invention required by the statute of the United States has not been met. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 153, 71 S.Ct. 127, 95 L.Ed. 162. In view of the state of the record and the opportunity of the District Court to view demonstrations, which we do not have, we think our decisions in General Time Corp. v. Hansen Mfg. Co., 7 Cir., 199 F.2d 259 and Sales Affiliates v. National Mineral Co., 7 Cir., 172 F.2d 608, are inapplicable here.” See also Standard Computing Scale" }, { "docid": "254396", "title": "", "text": "parts which, in substance, constitute the substantial counterpart of these omitted elements. And though no longitudinal movement is intentionally designed into the shank of Jeoffroy, the District Court found, and the device itself reveals, that some longitudinal movement, as in Graham, is inevitable because of “necessary manufacturing tolerances and operational wear in the nib and socket fittings of the shank, fulcrum member and bracket”, though it further appears that such longitudinal movement is not an essential operative feature of the device. In any event, the claims of Graham measure the invention and Claims 5 and 6 do not specify any longitudinal movement. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 419, 28 S.Ct. 748, 52 L.Ed. 1122. We conclude that such alterations in the form of mechanically equivalent elements do not avoid infringement where, as here, the accused device exhibits the essential elements of the patent claims, for “ ‘if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form or shape.’ ” Graver Tank & Manufacturing Company, Inc., v. Linde Air Products Company, 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097; Chicago Pneumatic Tool Co. v. Hughes Tool Co., 10 Cir., 97 F.2d 945, 947; Hunt v. Armour & Co., 7 Cir., 185 F.2d 722, 728; Royal Typewriter Co. v. Remington Rand, 2 Cir., 168 F.2d 691, 692. Furthermore, in view of the District Court’s findings being based on a demonstration of the Graham and Jeoffroy devices in actual operation, we cannot say that his finding of infringement is clearly erroneous. Graver Tank & Mfg. Co., Inc., v. Linde Air Products Co., supra, 339 U.S. at pages 609-610, 70 S.Ct. 854; see also Hazeltine Research v. Admiral Corp., 7 Cir., 183 F.2d 953, 954. As Judge Lindley, speaking for the Seventh Circuit, in the recent case of Porter-Cable Machine Co. v. Knives & Saws, Inc., 204 F.2d 21, 23-24, has appropriately stated: “The court heard expert witnesses, viewed demonstrations and concluded that this element" }, { "docid": "11997240", "title": "", "text": "Hazel-Atlas Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250; Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 670, 64 S.Ct. 268, 88 L.Ed. 376; Brown v. Piper, 91 U.S. 37, 44, 23 L.Ed. 200; Nachman Spring-Filled Corp. v. Kay Mfg. Co., 2 Cir., 139 F.2d 781, 783; Root Refining Co. v. Universal Oil Products Co., 3 Cir., 169 F.2d 515; Cridlebaugh v. Rudolph, 3 Cir., 131 F.2d 795, 800. . U. S. v. Esnault-Pelterie, 299 U.S. 201, 205, 57 S.Ct. 159, 81 L.Ed. 123; Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275, 69 S.Ct. 535, 93 L.Ed. 672; Graver Mfg. Co. v. Linde Co., 339 U.S. 605, 609, 611, 70 S.Ct. 854, 94 L.Ed. 1097; Great A. & P. Tea Co. v. Supermarket Co., 340 U.S. 147, 153-154, 71 S.Ct. 127; Minnesota Mining & Mfg. Co. v. Coe, 75 U.S.App.D.C. 131, 125 F.2d 198, 199; Refrigeration Engineering Inc. v. York Corp., 9 Cir., 168 F.2d 896, 900. . Refrigeration Engineering, Inc. v. York Corp., 9 Cir., 168 F.2d 896, 900. . That the Interchemical ruling was confined to patents shown by the evidence to be “scarecrows,” see the decision of this court in Addressograph-Multigraph Corp. v. Cooper, 2 Cir., 156 F.2d 483, 485. It has been suggested, however, that an obviously invalid patent is no threat, and that therefore the Supreme Court, in the Interchemical case, could not have intended to limit its admonition to such patents. This suggestion ignores a well-known fact to which I have already adverted: A patent, no matter how obvious its invalidity (or “scarecrow” character) may be to a court, is often used by the patent-owner to coerce an alleged infringer who has not the financial means to engage in the very considerable expense of defending an infringement suit. . On reftearing we said 133 F.2d at page 550, 551 that an upper court “may affirm a judgment adverse to a patentee either by holding (a) that the patent is invalid, or (b) that there is no past or threatened infringement, or (c) that the patent" }, { "docid": "22054101", "title": "", "text": "its successful marketing. “In my opinion Mr. Rains’ design as shown in the patent was new, original, ornamental and certainly non-obvious to a person of ordinary skill in the art at the time Mr. Rains invented it.’’ . See Sperti Products, Inc. v. Coca-Cola Co., 399 F.2d 607 (3 Cir. 1968). . Graham v. John Deere Co. of Kansas City, 383 U.S. at 17-18, 86 S.Ct. 684; Frank W. Egan & Co. v. Modern Plastic Machinery Corp., 387 F.2d 319, 324 (3 Cir.), cert. denied, 391 U.S. 966, 88 S.Ct. 2036, 20 L.Ed.2d 879 (1968) ; Jones Knitting Corp. v. Morgan, 361 F.2d 451, 458 (3 Cir. 1966). . Cf. Allen-Bradley Co. v. Air Reduction Co., Inc., 391 F.2d 282 (3 Cir. 1968). . Safety Car Heating & Lighting Co., Inc. v. General Electric Co., 155 F.2d 937, 939 (2 Cir. 1946). . Methode Electronics, Inc. v. Elco Corp., supra, n. 6. . R. M. Palmer Co. v. Luden’s Inc., 236 F.2d at 500-501. . See J. R. Wood & Sons, Inc. v. Abelson’s, Inc., 74 F.2d 895, 896 (3 Cir. 1934); Boyle v. Rousso, 16 F.2d 666, 668 (8 Cir. 1926). In re Schraubstadter, 26 App.D.C. 331 (1905); In re Rutledge, 47 F.2d 797 (C.C.P.A.1931). See also Gorham Mfg. Co. v. White, 81 U.S. 511, 527-528, 20 L.Ed. 731 (1871). . See Jacob Elishewitz & Sons Co., Inc. v. Bronston Brothers & Co., Inc., 40 F.2d 434 (2 Cir. 1930). . Hygienic Specialties Co. v. H. G. Salzman, Inc., 302 F.2d 614, 617 (2 Cir. 1962) ; Thabet Co. v. Kool Vent Metal Awning Corp. of America, 226 F.2d 207, 212 (6 Cir. 1955) ; Application of Bartlett, 300 F.2d 942, 943-944 (C.C.P.A. 1962). . See New York Belting & Packing Co. v. New Jersey Car Spring & Rubber Co., 137 U.S. 445, 450, 11 S.Ct. 193, 34 L.Ed. 741 (1890); Jacob Elishewitz & Sons Co., Inc. v. Bronston Brothers & Co., Inc., supra, n. 20. See also Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 609, 70 S.Ct. 854, 94 L.Ed. 1097" }, { "docid": "11923359", "title": "", "text": "we have here] in a crowded art, has increased.” Briggs & Stratton Corporation v. Clinton Machine Co., supra, (concurring opinion of Judge Sanborn, 247 F.2d at 401) and cases there cited. In Caldwell v. Kirk Manufacturing Company, supra, 269 F.2d at 509, Judge Sanborn again expressed the principle in this language: “More exacting standards for determining patentable invention have been applied by the courts in recent years than was formerly the case. In Trico Products Corporation v. Delman Corporation, 8 Cir., 180 F.2d 529, 533, this Court said: “ * * * ‘The Supreme Court has, we think, raised the standards of originality necessary to sustain patents for improvements such as those involved in the instant cases, regardless of their usefulness or commercial success. Compare, Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523, and Temco Electric Motor Company v. Apco Manufacturing Company, 275 U.S. 319, 48 S.Ct. 170, 72 L.Ed. 298, with Cuno Engineering Corp. v. Automatic Devices Corp., supra, 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58.” The same pronouncement appears in Steffan v. Weber Heating and Sheet Metal Company, supra, 237 F.2d at 604; Selmix Dispensers, Inc. v. Multiplex Faucet Co. (Inc.), supra, 277 F.2d at 887; and Crome & Company v. The Vendo Company, 8 Cir., 299 F.2d 852 (1952), where Judge Blackmun in his dissent observed, “Mechanical combination patents in this, court have met with little recent success.”' With these pronouncements clearly in mind, we turn to the factual setting of the case. Inasmuch as the trial court’s Memorandum Opinion, Findings of Fact,, and Conclusions of Law, W.D.Mo., 216 F.Supp. 272 (1963), adequately embody the general factual background, including the-terms of the patent claims and other technical descriptions, we need here set. forth only a condensed version of the.facts. Appellee Graham originally submitted twelve claims in his application to the Patent Office for a patent on a device which eventually was issued as Patent No. 798. The Patent Office rejected all twelve-claims, partially on the grounds that, seme of them failed to patently distinguish from" }, { "docid": "3630886", "title": "", "text": "223 F.2d 285 (1955). . Loom Co. v. Higgins, 1881, 105 U.S. 580, 591-592, 26 L.Ed. 1177; and see Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., supra note 3, 321 U.S. at page 279, 64 S.Ct. 593. . Expanded Metal Co. v. Bradford, 1909, 214 U.S. 366, 381, 29 S.Ct. 652, 656, 53 L.Ed. 1034. Types of situations contra may be seen in Concrete Appliances Co. v. Gomery, 1925, 269 U.S. 177, 185, 46 S.Ct. 42, 70 L.Ed. 222; Powers-Kennedy Contracting Corp. v. Concrete Mixing & Conveying Co., 1930, 282 U.S. 175, 186, 51 S.Ct. 95, 75 L.Ed. 278; Electric Cable Joint Co. v. Brooklyn Edison Co., 1934, 292 U.S. 69, 79, 54 S.Ct. 586, 78 L.Ed. 1131; Cuno Engineering Corp. v. Automatic Devices Corp., 1941, 314 U.S. 84, 91, 62 S.Ct. 37, 86 L.Ed. 58; Great A. & P. Tea Co. v. Supermarket Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162. We may safely assume that the Patent Act of 1952, 35 U.S.C.A. § 103, was intended to restore “the law to what it was when the Court announced the definition of invention.” See discussion by Judge Learned Hand in Lyon v. Bausch & Lomb Optical Co., 2 Cir., 1955, 224 F.2d 530, 535-536, certiorari denied 76 S.Ct. 193; cf. General Motors Corp. v. Estate Stove Co., 6 Cir., 1953, 203 F.2d 912, certiorari denied, 1953, 346 U.S. 822, 74 S.Ct. 37, 98 L.Ed. 348. . Eibel Process Co. v. Minnesota & Ontario Paper Co., 1923, 261 U.S. 45, 63, 43 S.Ct. 322, 328, 67 L.Ed. 523; Smith v. Snow, 1935, 294 U.S. 1, 14, 55 S.Ct. 279, 79 L.Ed. 721. . Levin v. Coe, 1842, 76 U.S.App.D.C. 347, 356, 132 F.2d 589, 598. . Great A. & P. Tea Co. v. Supermarket Corp., supra note 2, 340 U.S. at page 152, 71 S.Ct. at page 130. BAZELON, Circuit Judge (dissenting). My brethren of the majority reverse the judgment below because “on the entire evidence [they] are left with the definite and firm conviction that a mistake has been committed.” I do not share their" } ]

[ { "docid": "22162125", "title": "", "text": "the facts of the case before them, jurisdiction did not lie in California; and apparently all of the Justices agreed that the stream of commerce theory provides a valid basis for finding requisite minimum contacts. The split was over the exact requirements for an application of the theory. Four Justices were of the view that an exercise of personal jurisdiction requires more than the mere act of placing a product in the stream of commerce. As Justice O’Connor expressed it, there must be in addition “an action of the defendant purposefully directed toward the forum State.” Asahi, 480 U.S. at 112, 107 S.Ct. at 1032. (Emphasis in original) But four of the Justices considered the showing of ‘additional conduct’ unneeded: “The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale.... A defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State, and indirectly benefits from the State’s laws that regulate and facilitate commercial activity.” Id. at 117, 107 S.Ct. at 1034-35 (Brennan, White, Marshall, & Blackmun, JJ., concurring in part and concurring in the judgment). Justice Brennan, writing for these Justices, considered this view to be the prevalent view among most courts and commentators. Id. at 117-18 & n. 1, 107 S.Ct. at 1034-35 & n. 1 (Brennan, J., concurring in part and concurring in the judgment). We need not join this debate here, since we find that, under either version of the stream of commerce theory, plaintiff made the required jurisdictional showing. When viewed in the light of the allegations and the uncontroverted assertions in the affidavits, plaintiff has stated all of the necessary ingredients for an exercise of jurisdiction consonant with due process: defendants, acting in consort, placed the accused fan in the stream of commerce, they knew the likely destination of the products, and their conduct and connections with the forum state were such that they should reasonably have anticipated being brought into court there. We" } ]

[ { "docid": "14563117", "title": "", "text": "817 F.Supp. 1018, 1029 (D.Conn.1993) (citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). “The constitutional touchstone of the determination whether an exercise of personal jurisdiction comports with due process remains whether the defendant purposefully established minimum contacts in the forum State.” Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 108-09, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (internal citations and quotations omitted). The Supreme Court in Asahi reaffirmed that the minimum contacts “must have a basis in some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws- Jurisdiction is proper ... where the contacts proximately result from action by the defendant himself that create a substantial connection with the forum State.” Id. at 109, 107 S.Ct. 1026 (internal quotations and citations omitted). The placement of a product in the stream of commerce without more is not an act of the defendant purposefully directed to the forum State. Id. at 112, 107 S.Ct. 1026. Additional conduct of the defendant that may indicate an intent or purpose to serve the market in the forum State includes designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. Id. In the instant case, plaintiffs assert that Neogen’s single $246.00 sale to Cadbury constitutes “minimum contacts” sufficient to sustain personal jurisdiction. This “contact,” however, was initiated by IDEXX, not by the defendant. Regardless of IDEXX’s motives, it was still the acts of IDEXX that brought the infringing product into the forum, not Neogen’s promotion, advertising, or sales activities. Cf. Whelen, supra, 672 F.Supp. at 664 (finding due process requirements met where defendant readily supplied potential customers with catalogs advertised in periodicals having Connecticut circulation, provided products on order either directly or knowingly through its distributor, and demonstrated a readiness" }, { "docid": "579579", "title": "", "text": "reach of the court’s in personam jurisdiction. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Due process requires that a defendant have purposeful “minimum contacts” with the forum state before jurisdiction attaches. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). These contacts need not include the physical presence of the defendant in the forum state, but may arise where the defendant, outside of the forum state, takes some action which is purposefully directed at that state. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 114, 107 S.Ct. 1026, 1034, 94 L.Ed.2d 92 (1987). This includes placing manufactured goods in the “stream of commerce” where the defendants have good reason to know the likely destination of the product. Id.; Worldr-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). The precise parameters of the “stream of commerce” theory are still a topic of much discussion among the federal circuit courts of appeal. See, e.g., Vermeulen v. Renault, U.S.A, Inc., 985 F.2d 1534, 1544-48 & n. 17 (11th Cir.1993) (collecting eases). The courts appear to agree, however, that where a manufacturer places a product into the forum state via an established distribution chain, specific jurisdiction, such as is alleged here, is proper. Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1565-68 (Fed. Cir.1994), (citing Burger King, 471 U.S. at 472-73, 105 S.Ct. at 2182; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774-75, 104 S.Ct. 1473, 1478-79, 79 L.Ed.2d 790 (1984)). In this case, Saxholm contends that Dyno created Dynal AS specifically to market and sell its Dynospheres. Dynal AS, as an exclusive distributor, markets Dyno’s biomagnetie materials throughout the world through a number of wholly-owned subsidiaries, including Dynal, Inc. Dyno’s substantial ownership interest in Dynal AS coupled with the presence of a shared director and officer, Hakon Haugen, lend substantial credibility to Saxholm’s argument that Dyno was or should have been well aware that the eventual destination of their products included" }, { "docid": "7022529", "title": "", "text": "“stream of commerce” theory. Wessinger v. Vetter, 685 F.Supp. 769, 777 (D.Kan.1987). Second, the court agrees with plaintiff that the facts of this case do not present a “stream of commerce” case. Defendant Goodyear S.A. does not place its machines into the stream of commerce for purchase by any number of buyers, but manufactures a limited number of machines for a very limited number of buyers (itself, Goodyear Tire, and Goodyear Tire’s subsidiaries) pursuant to specific design orders. Although defendant claims it has no control over the placement of the machines once they are sold and delivered to Goodyear Tire in Luxembourg, defendant concedes in its answers to plaintiff's interrogatories that the machine in question was customized for the Topeka plant and was, in fact, placed in the Topeka plant. These facts present a much stronger showing of minimum contacts than the “direct marketing” or “stream of commerce” cases in which this court has previously found personal jurisdiction over foreign manufacturers to be within the bounds of due process. See, e.g., Cunningham v. Subaru of America, Inc., 631 F.Supp. 132, 135-36 (D.Kan.1986); Bohannon, 682 F.Supp. at 43-44 (confirming holding in Cunningham in light of Asahi); Wessinger, 685 F.Supp. at 775-78. Third, even under Asahi, plaintiff has met its burden of establishing a prima facie case of jurisdiction. As the Supreme Court held: The “substantial connection” ... between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State_ The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State.... Asahi, 480 U.S. at 112, 107 S.Ct. at 1033. By customizing the machine for the Topeka plant, defendant indicated an intent to serve Goodyear Tire’s purposes in Kansas. Thus, defendant did more than simply place its machine into a" }, { "docid": "14563119", "title": "", "text": "to initiate telephone solicitation of Connecticut customers and anticipated a viable and growing sales market in the State). Moreover, the courts have repeatedly held that jurisdiction may not be manufactured by the conduct of others. See Chung v. NANA Development Corp., 783 F.2d 1124, 1127 (4th Cir.), cert. denied, 479 U.S. 948, 107 S.Ct. 431, 93 L.Ed.2d 381 (1986). Under such circumstances a defendant cannot be said to have purposefully availed itself of the forum. See DeSantis v. Hafner Creations, Inc., 949 F.Supp. 419, 425 (E.D.Va.1996). Only those contacts with the forum that were created by the defendant, rather than those manufactured by the unilateral acts of the plaintiff, should be considered for due process purposes. To hold otherwise would allow a plaintiff to manufacture jurisdiction over a non-resident defendant in any forum, regardless of how inconvenient, even when the defendant has not purposefully directed any activity toward the forum state. See Regent Lighting Corp. v. American Lighting Concept Inc., Civil No. 2:96CV439, 1997 WL 1051425, 1997 LEXIS 4041, *16 (M.D.N.C. Feb. 10,1997). At oral argument, plaintiffs relied heavily on the case of Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed.Cir.1994), cert. dismissed, 512 U.S. 1273, 115 S.Ct. 18, 129 L.Ed.2d 917 (1994), which held that the purposeful minimum contacts requirement of the due process clause was met by virtue of defendants’ placing the “accused fan” in the stream of commerce through an established distribution chain, knowing the likely destination of the products, and “their conduct and connections with the forum state were such that they should reasonably have anticipated being brought into court here.” Id. at 1566. Beverly Hills Fan Co. is clearly distinguishable on its facts from the instant case, where Neogen’s contacts with the forum were limited to a single sale (initiated by plaintiffs), as opposed to the shipment of a substantial amount of goods into the forum state through an established distribution channel. Accordingly, we hold that this one sale in Connecticut, initiated by plaintiffs, did not satisfy the minimum contacts of the due process clause. Defendant’s Web Site on the Internet" }, { "docid": "7058644", "title": "", "text": "magazines distributed all world-wide, are insufficient bases for the assertion of personal jurisdiction, cf. Cascade Corp. v. Hiab— Foco AB, 619 F.2d 36 (9th Cir. 1980). Here, there is no indication that any of the con tacts related to the cause of action, nor were they “continuous and systematic” or “substantial.” Data Disc. Inc. v. Systems Tech. Assoc., Inc., supra, 557 F.2d at 1287. When the direct contacts of each steel mill are considered in their entirety, they do not amount to the transaction of business in Oregon for venue purposes, nor do they satisfy minimum contacts due process for personal jurisdiction. Steel Shipped to Oregon Plaintiff accurately states that, in many instances, the steel mills knew that steel sold to the trading companies would be shipped to Portland. The destination of the steel was often printed on mill-order sheets sent to the steel mills from the trading companies. Plaintiff therefore argues that the steel mills contemplated steel sales in Oregon and transacted business here as a result. In World-Wide Volkswagen Corp. v. Woodson, supra, 100 S.Ct. at 567, the Court stated in dicta that jurisdiction may be proper if a corporation delivers products into the stream of commerce expecting them to be purchased by consumers in the forum state. By placing products in the stream of commerce a defendant may be acting so as to purposefully avail itself of the privilege of doing business in the forum state. I believe it is important, however, to determine whether the defendant initiated the business contacts in the forum, and whether defendant specially manufactured the products for shipment to the forum. See e. g., Neptune Microfloc v. First Fla. Util., 261 Or. 494, 497-98, 495 P.2d 263, 264 (1972). Here, the steel mills were aware of the ultimate destination of the steel sold to the trading companies, but they did not solicit sales from Oregon nor did they have any control over where the steel was to be shipped. They did not specially manufacture steel for Oregon customers. I do not believe they acted purposefully so as to avail themselves of the" }, { "docid": "3452327", "title": "", "text": "Id. at 1560-61. The Beverly Hills Fan court found that the defendants “placed the accused fan in the stream of commerce, they knew the likely destination of the products, and their conduct and connections with the forum state were such that they should reasonably have anticipated being brought into court [in the forum].” Id. at 1566. The court reasoned that the “presence of an established distribution channel” indicated an “expectation that [defendant’s products] will be purchased by consumers in the forum state.” Id. (quoting World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559). In contrast, the Federal Circuit has found that where a defendant does not control the “distribution channel,” the stream of commerce theory is inapplicable. Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1362 (Fed.Cir.1998). In that case, the defendant patent holder entered into licensing agreements with companies that manufactured or marketed certain athletic shoes. Id. at 1357. The Federal Circuit found that the defendant had no control over its licensees or their products, and therefore personal jurisdiction could not be premised on the stream of commerce theory. The case in front of me is akin to Beverly Hills Fan. Like the defendants in Beverly Hills Fan, Life + Gear has established distribution channels in Illinois such that it “knew the likely destination” of its products and established “connections with the forum state.” 21 F.3d at 1566. I find, therefore, that Life + Gear has “purposefully directed its activities” at residents of Illinois and that the claim here “arises out of or relates to those activities,” and I can exercise jurisdiction over Life + Gear if the final jurisdictional requirement, that jurisdiction be “reasonable and fair,” is also met. See Avocent, 552 F.3d at 1332; Burger King, 471 U.S. at 472-77, 105 S.Ct. 2174. After a plaintiff has shown sufficient minimum contacts exist to support jurisdiction, “it becomes defendants’ burden to present a ‘compelling case that the presence of some other considerations would render jurisdiction unreasonable.’ ” Electronics, 340 F.3d at 1351-52 (quoting Burger King, 471 U.S. at 477, 105 S.Ct. 2174). Factors that are relevant" }, { "docid": "14563118", "title": "", "text": "State. Id. at 112, 107 S.Ct. 1026. Additional conduct of the defendant that may indicate an intent or purpose to serve the market in the forum State includes designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. Id. In the instant case, plaintiffs assert that Neogen’s single $246.00 sale to Cadbury constitutes “minimum contacts” sufficient to sustain personal jurisdiction. This “contact,” however, was initiated by IDEXX, not by the defendant. Regardless of IDEXX’s motives, it was still the acts of IDEXX that brought the infringing product into the forum, not Neogen’s promotion, advertising, or sales activities. Cf. Whelen, supra, 672 F.Supp. at 664 (finding due process requirements met where defendant readily supplied potential customers with catalogs advertised in periodicals having Connecticut circulation, provided products on order either directly or knowingly through its distributor, and demonstrated a readiness to initiate telephone solicitation of Connecticut customers and anticipated a viable and growing sales market in the State). Moreover, the courts have repeatedly held that jurisdiction may not be manufactured by the conduct of others. See Chung v. NANA Development Corp., 783 F.2d 1124, 1127 (4th Cir.), cert. denied, 479 U.S. 948, 107 S.Ct. 431, 93 L.Ed.2d 381 (1986). Under such circumstances a defendant cannot be said to have purposefully availed itself of the forum. See DeSantis v. Hafner Creations, Inc., 949 F.Supp. 419, 425 (E.D.Va.1996). Only those contacts with the forum that were created by the defendant, rather than those manufactured by the unilateral acts of the plaintiff, should be considered for due process purposes. To hold otherwise would allow a plaintiff to manufacture jurisdiction over a non-resident defendant in any forum, regardless of how inconvenient, even when the defendant has not purposefully directed any activity toward the forum state. See Regent Lighting Corp. v. American Lighting Concept Inc., Civil No. 2:96CV439, 1997 WL 1051425, 1997 LEXIS 4041, *16 (M.D.N.C. Feb. 10,1997). At oral" }, { "docid": "20735142", "title": "", "text": "to the fullest reach permitted by the due process clause of the United States Constitution, however, the sole inquiry becomes whether the court’s exercise of personal jurisdiction over the defendant is consistent with due process. Akro Corp. v. Luker, 45 F.3d 1541, 1544 (Fed. Cir.1995). The Federal Circuit recognizes that personal jurisdiction over a non-resident defendant is within the confines of due process if (1) that defendant purposefully directs its activities at residents of the forum, (2) the claim arises out of or relates to those activities, and (3) jurisdiction is constitutionally reasonable and fair. Genetic Implant Sys., Inc. v. Core-Vent Corp., 123 F.3d 1455, 1458 (Fed.Cir.1997); Akro, 45 F.3d at 1545. As set forth below, jurisdiction over FIC satisfies all three criteria. a. Purposefully Directed Activities FIC purposefully directed its activities at California. Under the stream of commerce theory, FIC has minimum contacts with California sufficient to satisfy this prong. A defendant corporation purposefully directs its activities at a state if that corporation delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in such state. See Beverly Hills Fan, 21 F.3d at 1565. Forty-seven percent of FICA’s sales of FIC products occurs within California. (Lien Decl. ¶ 7.) Regardless of whether FIC delivers its products to FICA in Taiwan or in California, FIC incorporated its subsidiary, FICA, in California for the purpose of distributing its products in the United States, and placed the products into the stream of commerce with the expectation that FICA would resell the products throughout the United States from its headquarters in California. (See Lien Decl. ¶¶ 2-3; Wang Decl. ¶ 2; Eichen Decl. Exs. A & B.) b. Relation of Claims to Activities LGE’s claims relate to FIC’s activities directed at California. Selling, or making offers to sell, infringing products in the forum state is related to a claim of patent infringement significant to satisfy the “arising out of’ or “relating to” prong of a due process test. See 3D Sys., 160 F.3d at 1379; LG Elecs., 126 F.Supp.2d at 420. FIC sells its allegedly" }, { "docid": "8805751", "title": "", "text": "commerce. Spal knowingly and intentionally exploited the California market through its exclusive distributor’s advertising in California, and by establishing channels for providing regular advice in California. Iowa Export advertised and sold, and is presently advertising and selling, Spal products, including the subject of the ’386 patent, in California, and Spal provided Iowa Export numerous sales aids which Spal knew would be used in California for selling Spal products there. As in Beverly Hills Fan, “defendants, acting in consort, placed the ... device in the stream of commerce, they knew the likely destination of the products, and their conduct and connections with the forum state were such that they should reasonably have anticipated being brought into court there.” Beverly Hills Fan, 21 F.3d at 1666, 30 USPQ2d at 1008. Here Spal purposefully directed its activities at the forum State and Iowa Export, acting as Spal’s agent, purposefully initiated the interaction with Viam that resulted in the instant suit. There is sufficient connection between the activity and the litigation to satisfy this prong of the International Shoe Due Process test. Minimum contacts is a necessary, but not a sufficient, condition to finding personal jurisdiction. Akro, 45 F.3d at 1645—46, 33 USPQ2d at 1508-09; Beverly Hills Fan, 21 F.3d at 1568, 30 USPQ2d at 1009. Once a plaintiff makes the required showing that there have been sufficient minimum contacts by the out-of-state defendant with the forum State, the defendant may still defeat jurisdiction by marshaling a compelling case against jurisdiction on the grounds that its exercise would be unreasonable, contrary to concepts of fair play and substantial justice. Id. The test of unreasonableness is a multi-factored balancing test that weighs any burdens on the defendant against various countervailing considerations, including the plaintiffs interest in a convenient forum and the forum state’s interest in resolving controversies flowing from in-state events. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985). The inquiry under this test includes a balancing of (1) the burden on the defendant; (2) the interests of the forum state; (3) the plaintiffs interest in" }, { "docid": "21208045", "title": "", "text": "first as to whether the defendant has sufficient contacts with the forum state to justify the exercise of personal jurisdiction, see International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and second, as to whether the assertion of jurisdiction is reasonable under the circumstances and “comports with ‘traditional notions of fair play and substantial justice.’ ” Id., at 316, 66 S.Ct. 154. The Second Circuit has recently held that the two prongs of the due process test must be weighed relatively; where a plaintiffs showing on minimum contacts is weak, the reasonableness showing must be greater in order for a forum state to validly assert personal jurisdiction over the defendant. See Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d at 568-69. The “minimum contacts” portion of the due process analysis protects nonresident defendants from litigating in an inconvenient forum and ensures that federal courts do not exercise jurisdiction “beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 292, 100 S.Ct. 559. To serve as a basis for personal jurisdiction, the defendant’s conduct establishing minimum contacts must be purposefully directed toward the forum state, see Burger King Corp. v. Rudzewicz, 471 U.S. at 474-76, 105 S.Ct. 2174, and his connection with the state should lead him to “reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297, 100 S.Ct. 559. Thus, “a foreign corporation ‘purposefully avails’ itself of a particular forum where the corporation places its products into interstate commerce and reasonably foresees that those products will be delivered into that forum.” Kernan v. Kurz-Hastings, Inc., 997 F.Supp. at 374. Thus, “[t]he forum state does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297-98, 100 S.Ct. 559 (emphasis added). However, the law is" }, { "docid": "14563120", "title": "", "text": "argument, plaintiffs relied heavily on the case of Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed.Cir.1994), cert. dismissed, 512 U.S. 1273, 115 S.Ct. 18, 129 L.Ed.2d 917 (1994), which held that the purposeful minimum contacts requirement of the due process clause was met by virtue of defendants’ placing the “accused fan” in the stream of commerce through an established distribution chain, knowing the likely destination of the products, and “their conduct and connections with the forum state were such that they should reasonably have anticipated being brought into court here.” Id. at 1566. Beverly Hills Fan Co. is clearly distinguishable on its facts from the instant case, where Neogen’s contacts with the forum were limited to a single sale (initiated by plaintiffs), as opposed to the shipment of a substantial amount of goods into the forum state through an established distribution channel. Accordingly, we hold that this one sale in Connecticut, initiated by plaintiffs, did not satisfy the minimum contacts of the due process clause. Defendant’s Web Site on the Internet Following the initial round of briefs on defendant’s motion to dismiss, plaintiffs requested permission to file a surreply, in which they raised for the first time the existence of defendant’s Web site on the Internet as a basis for personal jurisdiction. Plaintiffs have provided a print-out of Neogen’s Web-page on the Internet, which lists the following categories of information: —Inventor Information —Elisa Kits for Equine/Greyhound Racing —Elisa Kits for Research —Mycotoxin Test for the Feed, Grain, and Nut Industries —Fruit, Vegetable and Turf Test Kits —Equine Health Care and Grooming Products —Meat and Poultry Microbial Screening Tests —Ready to Use Substrates —Seafood Test Kits -^-The Neogen Story —Veterinary Instruments —Employment Opportunities. The second page is a literature request form. The third page contains ordering information, which requires the person placing an order to call Neogen in Lansing between 8:00 and 6:00, Monday through Friday, at an “800” number, or to fax or mail an order to its offices in Lansing, Michigan, or Lexington, Kentucky. Relying on Inset Systems, Inc. v. Instruction Set, Inc., 937 F.Supp." }, { "docid": "8805750", "title": "", "text": "patent holder “purposefully directed his activities at residents of [the forum] and, if so, whether the litigation results from alleged injuries that arise out of or relate to those activities.” Akro, 45 F.3d at 1545, 33 USPQ2d at 1508 (internal quotes omitted). In this case, Spal’s marketing agreement and practices with Iowa Export establish a regular distribution channel through which Spal purposefully directed its activities. Iowa Export has the exclusive right to advertise, market and distribute products in the United States. In advertising and selling the invention, Iowa Export uses a Spal catalog which it has obtained from Spal. Furthermore, Iowa Export’s Director of North American Sales reported to Spal on a regular basis as to the sales of Spal products in the United States, and Iowa Export sold approximately $2.4 million worth of Spal products in the United States in 1992. These facts clearly establish a regular chain of distribution from Spal through Iowa Export to various markets in the United States. Furthermore, Spal did not simply place its product into the stream of commerce. Spal knowingly and intentionally exploited the California market through its exclusive distributor’s advertising in California, and by establishing channels for providing regular advice in California. Iowa Export advertised and sold, and is presently advertising and selling, Spal products, including the subject of the ’386 patent, in California, and Spal provided Iowa Export numerous sales aids which Spal knew would be used in California for selling Spal products there. As in Beverly Hills Fan, “defendants, acting in consort, placed the ... device in the stream of commerce, they knew the likely destination of the products, and their conduct and connections with the forum state were such that they should reasonably have anticipated being brought into court there.” Beverly Hills Fan, 21 F.3d at 1666, 30 USPQ2d at 1008. Here Spal purposefully directed its activities at the forum State and Iowa Export, acting as Spal’s agent, purposefully initiated the interaction with Viam that resulted in the instant suit. There is sufficient connection between the activity and the litigation to satisfy this prong of the International Shoe" }, { "docid": "3452328", "title": "", "text": "premised on the stream of commerce theory. The case in front of me is akin to Beverly Hills Fan. Like the defendants in Beverly Hills Fan, Life + Gear has established distribution channels in Illinois such that it “knew the likely destination” of its products and established “connections with the forum state.” 21 F.3d at 1566. I find, therefore, that Life + Gear has “purposefully directed its activities” at residents of Illinois and that the claim here “arises out of or relates to those activities,” and I can exercise jurisdiction over Life + Gear if the final jurisdictional requirement, that jurisdiction be “reasonable and fair,” is also met. See Avocent, 552 F.3d at 1332; Burger King, 471 U.S. at 472-77, 105 S.Ct. 2174. After a plaintiff has shown sufficient minimum contacts exist to support jurisdiction, “it becomes defendants’ burden to present a ‘compelling case that the presence of some other considerations would render jurisdiction unreasonable.’ ” Electronics, 340 F.3d at 1351-52 (quoting Burger King, 471 U.S. at 477, 105 S.Ct. 2174). Factors that are relevant to the reasonableness inquiry include: “the burden on the defendant, the forum State’s interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies.” Patent Rights, 603 F.3d at 1369 (quoting Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174). The Federal Circuit has explained that finding jurisdiction unreasonable is “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.” ' Id. (quoting Beverly Hills Fan, 21 F.3d at 1568 (internal quotation marks omitted)). Life + Gear has not met its burden, and jurisdiction is proper and reasonable. The Federal Circuit has found that a forum state’s interests are not insignificant and include “providing a convenient forum” for its citizens and “cooperating with other" }, { "docid": "20042186", "title": "", "text": "the Supreme Court stated that a defendant could purposefully avail itself of a forum by “delivering] its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum [s]tate.” In Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), a plurality of four justices concluded that something more was required — “an action of the defendant purposefully directed toward the forum state.” Id. at 112, 107 S.Ct. 1026. The cited examples of purposeful direction included “marketing through a distributor ... in the forum [s]tate” and “providing regular advice to customers.” Id. Four other justices considered the showing of additional conduct unnecessary. Id. at 117, 107 S.Ct. 1026. In Beverly Hills Fan, this court addressed the stream of commerce theory in the context of intellectual property interests, reversing a district court’s dismissal on personal jurisdiction grounds of a foreign manufacturer and an out-of-state distributor. 21 F.3d at 1560, 1566. Although the foreign manufacturer had no license for doing business in the forum, no assets, employees, or agents for service of process in the forum, and no direct sales in the forum, this court found the exercise of jurisdiction proper because the manufacturer purposefully shipped products through an established distribution channel with the expectation that those products would be sold in the forum. Id. at 1564-67. The court declined to address whether the exercise of personal jurisdiction requires something more than the mere act of placing a product in the stream of commerce with the expectation that it would be purchased in the forum state, finding that the plaintiff made the required jurisdictional showing under either version of the stream of commerce theory. Id. at 1566. Nuance has also made this required jurisdictional showing. Abbyy Production purposefully ships the accused software products into California through an established distribution channel, with the expectation that copies of those products will be sold in California. Unlike Beverly Hills Fan, which involved the more attenuated connection of an out-of-state distributor, see id. at 1559-60, Nuance brought suit in" }, { "docid": "2547532", "title": "", "text": "accusation, therefore the Court will construe the facts in the light most favorable to the plaintiff and hold that the alleged conversion satisfies Florida’s statute on long-arm jurisdiction. 2. Federal Due Process Considerations Regardless of plaintiff meeting the first part of the Court’s inquiry into the existence of personal jurisdiction, the Court must now conduct a completely different analysis regarding minimum contacts and due process considerations. There are three considerations under the due process clause: (1) purposeful availment of the forum state; (2) the cause of action arises out of the activities of which you purposefully availed yourself, i.e., the contacts must proximately result from actions by the defendant himself that create a “substantial connection” with the forum state, Burger King v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (quoting McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957)), and (3) reasonable foreseeability that “ ‘[a defendant] should reasonably anticipate being haled into court there.’ ” Burger King, 471 U.S. at 474, 105 S.Ct. 2174 (quoting World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). Plaintiff relies heavily on Future Tech. Int'l, Inc. v. Tae II Media, Ltd., 944 F.Supp. 1538 (S.D.Fla.1996) however, the Court finds Future Tech to be distinguishable on its facts. In Future Tech, the defendant (manufacturer) allegedly conspired against the plaintiff (distributor) to, inter alia, undermine a foreign trade market by soliciting clients away from the plaintiff, breach the manufacturing agreement before it was signed and wrongfully withhold products for distribution. The court found defendant, Tae II, to have established sufficient contacts with Florida to satisfy the due process considerations of the fourteenth amendment. Defendant Tae II made six trips to Miami within one year, and attended three business meetings during those six trips; the Court characterized the business relationship as involving “numerous transactions... not tied to an isolated, short-term arrangement.” Future Tech, 944 F.Supp. at 1558. In contrast, the facts of this case include a single telephone call, by the buyer of a service" }, { "docid": "20042187", "title": "", "text": "business in the forum, no assets, employees, or agents for service of process in the forum, and no direct sales in the forum, this court found the exercise of jurisdiction proper because the manufacturer purposefully shipped products through an established distribution channel with the expectation that those products would be sold in the forum. Id. at 1564-67. The court declined to address whether the exercise of personal jurisdiction requires something more than the mere act of placing a product in the stream of commerce with the expectation that it would be purchased in the forum state, finding that the plaintiff made the required jurisdictional showing under either version of the stream of commerce theory. Id. at 1566. Nuance has also made this required jurisdictional showing. Abbyy Production purposefully ships the accused software products into California through an established distribution channel, with the expectation that copies of those products will be sold in California. Unlike Beverly Hills Fan, which involved the more attenuated connection of an out-of-state distributor, see id. at 1559-60, Nuance brought suit in the same forum in which Abbyy Production’s distributor, Abbyy USA, is located. Moreover, under the Agreement, Abbyy Production has agreed to furnish Abbyy USA with new versions and updates of the Software, technical support, and oral and written consultations. The Supreme Court has endorsed precisely this sort of purposeful activity as reinforcing the proper exercise of jurisdiction. See Asahi, 480 U.S. at 112, 107 S.Ct. 1026. Although Appellees argue that Abbyy Production is merely licensing the rights to software in exchange for royalty payments, this distinction is irrelevant for jurisdictional purposes. Abbyy Production has purposefully imported the accused products into California, made those products available for sale through an established distribution chain, and the cause of action for patent infringement is alleged to arise out of these activities. No more is required for specific jurisdiction. See Burger King Corp., 471 U.S. at 472-73, 105 S.Ct. 2174; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774-75, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); Beverly Hills Fan, 21 F.3d at 1565. With respect to the third prong" }, { "docid": "14563125", "title": "", "text": "equivalent of a person advertising, promoting, selling or otherwise making an effort to target its product for a New York audience. In analyzing the constitutional due process issue, the district court explained that the defendant had done nothing to purposefully avail himself of the benefits of the forum state. Id., 937 F.Supp. at 301. Instead, the defendant, like numerous others, simply created a Web site and permitted anyone who could find it to access it. “Creating a site, like placing a product into the stream of commerce, may be felt nationwide — or even worldwide — but, without more, it is not an act purposefully directed towards the forum state.” Id. See also Graphic Controls Corp. v. Utah Medical Products, Inc., No. 96-CV-0459E(F), 1997 WL 276232, at *3 (W.D.N.Y.1997) (in action to declare a patent invalid, the foreign defendant’s 800 number and Web site did not indicate purposeful availment of the benefits of the forum, and, therefore, there was no jurisdiction) However, in Zippo Mfg. Co., supra, where the defendant had an Internet news service with approximately 3,000 paying subscribers in the forum state, the court held that the defendant had purposefully availed itself of the forum’s jurisdiction. And, in Resuscitation Technologies, Inc. v. Continental Health Care Corp., No. IP 96-1457-C-M7S, 1997 WL 148567 (S.D.Ind.1997), the non-resident defendant had extensive communications with the plaintiff in the forum state, including 80 electronic mail transmissions. There, the court found sufficient contacts to confer jurisdiction. In this case, there is no evidence that any user in Connecticut accessed Neogen’s Web site or purchased products based upon the Web site advertisement. There is also no evidence that this Web site advertisement was directed at Connecticut anymore than anyplace else in the nation. See E-Data Corp., supra, 989 F.Supp. at 177. Internet users could not order products directly from the Web site. Rather, it required them to call an “800” number in Michigan or write Neogen in Michigan or Kentucky. Like the court in Hearst, we find this Web site to be similar to an advertisement in a national magazine or newspaper. The eases cited" }, { "docid": "18201371", "title": "", "text": "and (3) representatives of the manufacturer attended trade shows in the United States, but not in the forum State. Id. at 2791. The plurality concluded that there were insufficient facts to determine that the defendant purposefully availed itself of the forum State’s market. The facts in the present case indicate a much stronger reason for the Court to hold that personal jurisdiction is proper in Texas. Medallion manufactures the allegedly infringing tortilla chips. Medallion has fulfilled and continues to fulfill repeated purchase orders for the allegedly infringing tortilla chips for Wal-Mart, a “major customer” of Defendants. Medallion knows that these allegedly infringing tortilla chips are then sold in Texas, and Medallion continues to reap the benefit of the sales of the tortilla chips in Texas. As the Federal Circuit found in a similar case, “[they] placed the accused [products] in the stream of commerce, they knew the likely destination of the products, and their conduct and connections with the forum state were such that they should reasonably have anticipated being brought into court there.” Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed.Cir.1994); see also Icon Health, 2009 WL 1025467, at *11; Dram Technologies, 2011 WL 4591902, at *3. The Federal Circuit went on to state that “the defendants’ shipments into [the forum state] were purposeful or knowing as evidenced by the defendants’ commercial relationship with [a forum state retailer that] was ongoing, and obviously intentional.” Icon Health, 2009 WL 1025467, at *11 (citing Beverly Hills Fan, 21 F.3d at 1564). The Court finds that personal jurisdiction in the Eastern District of Texas is proper as to Medallion based on these facts. Defendants contend that Ralcorp has no connection to the sales of allegedly infringing tortilla chips in Texas, since it is merely Medallion’s parent holding company. Defendants further argue that there are no facts which would justify piercing the corporate veil to establish jurisdiction over Ralcorp through the activities of Medallion. Plaintiff asserts that Ralcorp and Medallion are part of a unitary business operation. Ralcorp filed suit with Medallion in the Eastern District of Arkansas, and" }, { "docid": "3452326", "title": "", "text": "control over distribution channels for her crops. Id. ■ That the Nicastro Court does not discard the stream of commerce theory would also seem to suggest that the Federal Circuit case law utilizing this approach has been left undisturbed. In fact, in applying the stream of commerce theory, the Federal Circuit has clearly distinguished between those defendants who control the distribution channel and those who do not. See NeoMedia at *7. In a case involving the manufacturer and distributor of a fan allegedly infringing on patentee’s rights, the Federal Circuit applied the stream of commerce theory and found that jurisdiction was proper where defendants caused the allegedly infringing fan to be sold at the local outlet of a chain store. Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed.Cir.1994). In that case, the plaintiffs showed through affidavits that a private investigator purchased the allegedly infringing fan at a chain store with about six outlets in the forum state and that the fans were available for purchase at the other outlets as well. Id. at 1560-61. The Beverly Hills Fan court found that the defendants “placed the accused fan in the stream of commerce, they knew the likely destination of the products, and their conduct and connections with the forum state were such that they should reasonably have anticipated being brought into court [in the forum].” Id. at 1566. The court reasoned that the “presence of an established distribution channel” indicated an “expectation that [defendant’s products] will be purchased by consumers in the forum state.” Id. (quoting World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559). In contrast, the Federal Circuit has found that where a defendant does not control the “distribution channel,” the stream of commerce theory is inapplicable. Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1362 (Fed.Cir.1998). In that case, the defendant patent holder entered into licensing agreements with companies that manufactured or marketed certain athletic shoes. Id. at 1357. The Federal Circuit found that the defendant had no control over its licensees or their products, and therefore personal jurisdiction could not be" }, { "docid": "15887160", "title": "", "text": "that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). “In a case involving specific jurisdiction, a defendant’s contacts with the forum state must satisfy three criteria: they ‘must be related to the plaintiffs cause of action or have given rise to it’; they must involve ‘some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum’; and they ‘must be such that the defendant should reasonably anticipate being haled into court there.’ ” Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir.2007) (quoting McGow v. McCurry, 412 F.3d 1207, 1214 (11th Cir.2005)). The Supreme Court has emphasized that “the foreseeability that is critical to due process analysis is ... that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). “[T]he minimum contacts must be ‘purposeful’ contacts. The requirement for purposeful minimum contacts helps ensure that nonresidents have fair warning that a particular activity may subject them to litigation within the forum.” Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1565 (Fed.Cir.1994) (citations omitted). Plaintiffs have not met their burden of establishing that the Defendants have meaningful, purposeful contacts with the state of Florida so as to support personal jurisdiction. Plaintiffs attempt to find sufficient contacts through Defendants’ websites, but this effort is unavailing. Although the websites give rise to Plaintiffs’ cause of action, the other two criteria set forth in Sloss are not met; Plaintiffs have not presented evidence that the Defendants have “purposefully availed” themselves of the privilege of conducting activities with Florida or that they could reasonably anticipate being haled into court here. See Sloss, 488 F.3d at 925. On two prior occasions, this Court has ruled —" } ]

[ { "docid": "12943618", "title": "", "text": "on the merits. Second, the balance of Mr. Iliev’s petition is dismissed because it seeks review of matters that fall beyond the jurisdiction of this court. . Before us, Mr. Iliev does not contest the Board's holding that he is subject to removal or the denial of his request for a voluntary departure, but instead trains his fire only on the BIA's decision to deny him a hardship waiver. For this reason, we focus our own analysis on the hardship waiver question alone. . The Attorney General has delegated a considerable amount of his authority over immigration matters to the BIA, see 8 C.F.R. §§ 1003.1(a) & 1003.10(a), and thus the Attorney General's discretionary immigration actions are often, as here, carried out by that agency. . Although Matter of Patel did apply a presumption of fraud in its analysis under 8 U.S.C. § 1154(a)(2)(A), it did not suggest that the same presumption applies in cases arising under § 1186a(c)(4)(B). In fact, just the opposite — it expressly distinguished § 1186a(c)(4)(B) hardship waiver cases like Mr. Iliev's from § 1154(a)(2)(A) cases in which the presumption of fraud applies. See 19 I. & N. Dec. at 783-84. . On the penultimate page of his opening brief, Mr. Iliev suggests in passing that the BIA's decision might raise \"serious constitutional concerns.” Opening Br. at 41. He fails to develop this suggestion sufficiently, however, and so has waived it. See, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir.1998) (\"Arguments inadequately briefed in the opening brief are waived.”). . Where, as here, a single member of the BIA affirms an IJ’s decision in a brief opinion adopting the IJ’s reasoning, \"we are not precluded from consulting the IJ’s more complete explanation” of the grounds on which the BIA relied. Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.2006). Of course, Uanreroro and its progeny make clear that our \"task is to determine whether, in issuing [its] ... order ..., the BIA incorporated the IJ's reasoning, either expressly or by implication. Only then may we impute the IJ’s opinion to the BIA.”" } ]

[ { "docid": "22386324", "title": "", "text": "to warrant sua sponte reopening of his case. Wang timely filed before this Court a petition for review of the BIA’s denial of his motion to reopen. He argues that the BIA abused its discretion in denying his motion to reopen because he demonstrated changed country conditions in China that warranted an exception to the 90-day filing deadline for motions to reopen. He further argues that he “suffered ineffective assistance of counsel, and that such circumstances warrant equitable tolling of the time limitations on motions to reopen.” In response, the Government argues that the BIA did not abuse its discretion in denying Wang’s motion to reopen because it properly determined that Wang failed to show: (1) that he exercised due diligence during the relevant period of time; and (2) that country conditions in China had changed so as to warrant an exception to the ninety-day time limit for filing motions to reopen. DISCUSSION We review the BIA’s denial of a motion to reopen for abuse of discretion. See, e.g., Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005). An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Kaur, 413 F.3d at 233-34 (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001)). Pursuant to 8 C.F.R. § 1003.2(c)(2), a motion to reopen must be filed within 90 days of the entry of the final decision in the underlying proceeding. See note 4, ante at 712 (text of provision). Claims of ineffective assistance of counsel may provide a sufficient basis for equitable tolling of the 90-day period if the movant shows that his due process rights were violated by the conduct of counsel, and that the movant “exercised due diligence in pursuing the case during the period [he] seeks to toll.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citation omitted); Cekic v. INS, 435 F.3d 167," }, { "docid": "22735512", "title": "", "text": "motion to reopen his case and on July 23, 2007, Chen filed the petition now before us to review the BIA’s decision and order. III. JURISDICTION AND STANDARD OF REVIEW Zheng and Chen correctly assert that the BIA had jurisdiction under 8 C.F.R. § 1003.2(c). We have jurisdiction over the present petitions for review pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). We will not disturb the BIA’s decisions “unless they are found to be arbitrary, irrational, or contrary to law.” Id. (internal citations and quotation marks omitted). IV. DISCUSSION The general criteria governing motions to reopen set forth in 8 C.F.R. § 1003.2(c)(1) provide that: A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material. A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation. A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing .... Although a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R. § 1003.2(c)(2), the 90-day limitation does not apply if the movant seeks reopening “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The Supreme Court has set forth three bases on which the BIA can deny a motion to reopen: First, it may hold that the movant has failed to establish a prima" }, { "docid": "22244798", "title": "", "text": "the fact that he would be tortured if returned to China, and the purported ineffectiveness of his prior attorney. The BIA denied Wu’s motion on March 9, 2000 finding Wu failed to present additional arguments, a change in law, or an aspect of the case that was overlooked. The BIA also noted that, under the circumstances, Wu’s motion to reconsider could be deemed a successive motion to reopen that was number-barred under a regulation that prohibits filing more than one motion to reopen with the Board of Immigration Appeals, 8 C.F.R. § 3.2(c)(2) (2000) (now codified at 8 C.F.R. § 1003.2(c)(2) (Feb. 28, 2003)). The Board also refused to consider Wu’s Convention Against Torture (CAT) claim because the motion was not filed by the administrative deadline of June 21, 1999, see 8 C.F.R. § 208.18(b)(2) (2000), and because petitioner failed to make a prima facie showing of entitlement for relief under the CAT, see 8 C.F.R. § 208.16(c) (2000). According to petitioner’s notice of appeal, he seeks review only of the Board’s August 31, 1999 decision, not its later March 9, 2000 decision. Although petitioner had made his change-in-law argument in the earlier appeal to the BIA, the Board did not at that time address this argument. The Board did not, however, deem the change-in-law argument waived for it considered the argument in its March 9, 2000 decision. DISCUSSION I Petitioner’s Asylum Claim A. Standard of Review We review the decision of the BIA to deny a motion to reopen for abuse of discretion. See Guan v. Bd. of Immigration Appeals, 345 F.3d 47, 48 (2d Cir. 2003). “An abuse will be found only in those limited circumstances where the BIA’s decision (1) provides no rational explanation, (2) inexplicably departs from established policies, (3) is devoid of any reasoning, or (4) contains only summary or conclusory statements.” Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001). B. Government’s Objection to Our Review The government, citing 8 U.S.C. § 1105a(c) (1994) (repealed, effective 1997), asserts petitioner did not properly raise his change-in-law argument before the IJ and BIA," }, { "docid": "22972033", "title": "", "text": "105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (“[I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for abuse of discretion.” (quotation marks omitted)); see, e.g., Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir.2004) (holding that this, court lacked jurisdiction to consider whether the BIA should have sua sponte reopened proceedings under 8 C.F.R. § 1003.2(a), “because there are no standards by which to judge the agency’s exercise of discretion”). Consequently, the certification issue is beyond review. CONCLUSION The BIA correctly decided that Mr. Ma-hamat’s “Motion to Accept Late Filed Appeal or Reinstate Appeal” was untimely. As such, we need not decide whether the BIA abused its discretion in finding the motion number-barred or non-compliant with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The petition for review is DENIED. The Attorney General’s motion for summary denial is also DENIED. See 10th Cir. R. 27.2(A)(1). . A motion to reopen seeks to present evidence that \"is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(7)(B). A motion to reconsider, on the other hand, is available to raise errors of fact or law committed by the BIA in its prior decision, and must be supported by pertinent authority. 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1). In Galvez Pineda v. Gonzales, 427 F.3d 833, 837 (10th Cir.2005), we observed that \"[t]he appropriate method of presenting] [an ineffective assistance claim] is a motion to reopen the case before the BIA.” . A motion for reconsideration does not affect a removal order's finality. Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995)." }, { "docid": "22119003", "title": "", "text": "PER CURIAM. Petitioners Sedigheh ([ AXX-XXX-XXX ]) and Hessmaddin ([ AXX-XXX-XXX ]) Norani, through counsel, petition for review of an order by Board of Immigration Appeals (“BIA”) Member Lauri S. Filppu denying their motion to reopen. We assume the parties’ familiarity with the underlying facts and procedural history of the case. An alien facing removal may, at any time, move to reopen his case to apply for relief “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii) (2003). This Court reviews the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam); Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d. Cir.2004). The BIA abuses its discretion when it “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Kaur, 413 F.3d at 233-34 (quotation marks and citation omitted); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001) (internal citations omitted). In their motion to reopen, the No-ranis stated that, because of changed circumstances in Iran, they might be tortured or persecuted if returned there. The No-ranis stated that they would face persecution and torture based on a combination of circumstances: (1) Hessmaddin’s Jewish religion and nationality; (2) the Noranis’ interfaith (Jewish-Muslim) marriage, which violates Iranian law and Muslim law (Shariah); (3) Hessmaddin’s substantial business contacts with the Shah’s government; and (4) Hessmaddin’s violation of Sharia in the United States by selling alcohol. Hessmaddin’s asylum statement mentions the following sequence of events: After the Islamic revolution, he felt that he was under suspicion because of his Judaism and his prior business contacts with the Shah. Fearing for his sons, he brought them to the United States to be adopted by family" }, { "docid": "23558073", "title": "", "text": "INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). The denial of a motion to reopen is a final order subject to judicial review. Zheng v. Ashcroft, 89 Fed.Appx. 76, 77, 2004 WL 345601, at *1 (9th Cir. Feb.24, 2004). B. The Board’s December 5 Decision Was Not an Abuse of Discretion The only remaining issue is whether the Board abused its discretion by denying Petitioners’ motion to reopen because it was untimely. The motion was filed almost three months outside the ninety-day window for filing such motions set forth in 8 C.F.R. § 3.2(c)(2) and later codified at 8 U.S.C. § 1229a(c)(6)(C)(i). See Ekimian v. INS, 303 F.3d 1153, 1156 (9th Cir.2002). ■Petitioners argue that the Board “cannot summarily deny reopening based on cursory and speculative determinations.” (Petitioners’ Brief at 23.) They cite the Second Circuit case Zhao v. United States Department of Justice, 265 F.3d 83 (2d Cir.2001), in support of their argument. In Zhao, the Second Circuit reviewed the Board’s denial of a timely motion for reconsideration, which the Board had construed as a motion to reopen. The court stated that the Board abuses its discretion where its decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclu-sory statements.” Id. at 93 (citations omitted). The court remanded the case to the Board, holding that its decision was not adequately explained. Id. at 96-97. In this case, by contrast, the Board’s decision was neither conclusory nor devoid of reasoning. It is undisputed that the motion to reopen was filed outside the ninety-day period. Rather than departing “inexplicably” from established policies, the decision adheres to the long-established policy of enforcing statutory and regulatory deadlines. Petitioners have cited no authority to the effect that the Board abuses its discretion by denying an untimely motion. It was not an abuse of discretion for the Board to enforce the deadline. See INS v. Abudu, 485 U.S. 94, 111, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (“In passing on the sufficiency of [a motion to reopen], the" }, { "docid": "22972029", "title": "", "text": "petitioned this court for review. DISCUSSION Mr. Mahamat characterizes his “Motion to Accept Late Filed Appeal or Reinstate Appeal” as a motion to reopen, rather than a motion for reconsideration, which, he acknowledges, would be number-barred, see 8 C.F.R. § 1003.2(b)(2) (stating that “[a] party may file only one motion to reconsider”). Even if we accept that characterization, we must still deny the petition. The decision to grant or deny a motion to reopen proceedings is within the BIA’s discretion. 8 C.F.R. § 1003.2(a). We will reverse only if the BIA’s “decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Osei v. INS, 305 F.3d 1205, 1208 (10th Cir.2002) (quotation marks omitted). A motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C. § 1229a(e)(7)(C)(i). Here, Mr. Mahamat’s motion was filed over nine months after the BIA rendered its final decision dismissing Mr. Mahamat’s appeal. Consequently, the motion was untimely. Mr. Mahamat asserts, however, that the BIA should have equitably tolled the filing time. “For an untimely claim to receive the benefit of equitable tolling, ... an alien must demonstrate not only that the alien’s constitutional right to due process has been violated by the conduct of counsel, but that the alien has exercised due diligence in pursuing the case during the period the alien seeks to toll.” Iavorski v. INS, 232 F.3d 124, 135 (2d Cir.2000), see also Riley v. INS, 310 F.3d 1253, 1258 (10th Cir.2002) (joining the Second and Ninth Circuits in holding that motions to reopen are subject to equitable tolling). The issue of equitable tolling must be exhausted through the BIA in order for this court to reach the issue. See 8 U.S.C. § 1252(d)(1) (providing that “[a] court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right”); Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir.2002)" }, { "docid": "22422942", "title": "", "text": "would acquiesce in his torture by others.” Id. at 2. Because Alam “has not shown changed country conditions ... he has failed to show prima facie eligibility for CAT relief. There is, therefore, no basis for reopening.” Id. Before receiving a response to his motion to reconsider, however, Alam filed a timely petition for review of the BIA’s decision with respect to the second motion to reopen on September 26, 2003. In his brief, Alam argues, inter alia, that the BIA erred in denying his second motion to reopen; because the second motion to reopen was based on a showing of changed country conditions, the BIA should have considered the motion as an exception to the numerical time limits. DISCUSSION As a threshold matter, we note that our review is limited to the BIA’s decision not to reopen petitioner’s removal proceedings. Petitioner did not timely petition for review of the December 16, 2002 order of the BIA that affirmed the IJ’s denial of his underlying asylum application. “It is also well-established that the filing of a motion to reopen does not toll the time for filing a petition for review of the BIA’s final exclusion or deportation orders .... ” Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (citing Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995)). “We are therefore ‘precluded from passing on the merits of the underlying exclusion proceedings,’ and must confine our review to the denial of petitioner’s motion to reopen these proceedings.” Id. (quoting Ke Zhen Zhao v. DOJ, 265 F.3d 83, 90 (2d Cir.2001)). We review the BIA’s denial of a motion to reopen for abuse of discretion. Ke Zhen Zhao, 265 F.3d at 92-93. “An abuse of discretion may be found in those circumstances where the Board’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Id. at 93 (citations omitted). BIA regulations state that “[a] motion to reopen" }, { "docid": "22921852", "title": "", "text": "of ineffective assistance of counsel, such claims must first be presented to the Board.” Osei v. INS, 305 F.3d 1205, 1208 (10th Cir.2002). The appropriate method of presentation is a motion to reopen the case before the BIA. See Soberanes v. Comfort, 388 F.3d 1305, 1309 (10th Cir.2004) (“[T]he means for administratively correcting an instance of ineffective assistance of counsel is a motion to reopen .... ”). Failure to exhaust administrative remedies by not first presenting a claim to the BIA deprives this court of jurisdiction to hear it. See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999). To be sure, after submitting their First Petition to this court, the Piñedas presented their ineffective-assistance-of- counsel claim to the BIA in a motion to reopen. But, as discussed below, that motion was untimely. We have recognized in a variety of contexts that untimely filings with administrative agencies do not constitute exhaustion of administrative remedies. See, e.g., Patel v. Fleming, 415 F.3d 1105, 1109, 1112 (10th Cir.2005) (section 1983 litigation under the Prisoner Litigation Reform Act); Esposito v. United States, 368 F.3d 1271, 1274 (10th Cir.2004) (Federal Tort Claims Act); Harms v. IRS, 321 F.3d 1001, 1009-10 (10th Cir.2003) (untimely appeal to the Merit Systems Protection Board). The Piñedas’ untimely motion to reopen does not satisfy the exhaustion requirement. Accordingly, we lack jurisdiction to review the Piñedas’ ineffective-assistance claim and dismiss the First Petition to the extent that it raises that claim. B. Denial of Motion to Reopen The BIA denied the Pinedas’ motion to reopen as untimely. “We review the BIA’s decision on a motion to reopen for an abuse of discretion. The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir.2003) (internal citations and quotation marks omitted). On the other hand, there is no abuse of discretion when “although the BIA’s decision is succinct, its rationale is clear, there is no departure from established policies, and its statements are a correct" }, { "docid": "22613255", "title": "", "text": "claim on a motion to reopen). It is undisputed that both the time and numerical bars pertaining to motions to reopen apply here. See 8 U.S.C. § 1229a (c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). Zheng argues, however, that he has demonstrated the existence of materially changed conditions in China affecting the possibility of his persecution there should he be forced to return, which would satisfy one of four possible exceptions to those limitations. See 8 C.F.R. § 1003.2(c)(3)(h) (“[T]ime and numerical limitations ... shall not apply to a motion to reopen proceedings ... based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.”). “A motion to reopen proceedings [must] state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). Such a motion “[may] not be granted unless it appears to the [BIA] that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” Id. “We review the decision to deny a motion to reopen removal proceedings for abuse of discretion.” Bhanot v. Chertoff, 474 F.3d 71, 73 (2d Cir.2007) (per curiam). The BIA abuses its discretion if its decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.2006) (internal quotation marks and citation omitted). II. The Notice The propriety of the BIA’s decision to deny Zheng’s second motion to reopen depends on its conclusion that Zheng had not established a change in country conditions, which in turn was based in part on the BIA’s refusal to credit the Notice. The BIA noted that the Notice lacked authentication, which, “in light of the [IJ’s] adverse credibility finding,” prompted the BIA to reject the" }, { "docid": "22750939", "title": "", "text": "reopen, INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (internal quotation marks omitted), “[a]n abuse of discretion may be found in those circumstances where the [BIA’s] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the [BIA] has acted in an arbitrary or capricious manner,” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001) (citations omitted). “The statutory framework governing asylum proceedings does not provide for motions to reopen or reconsider, and the right to make such motions depends entirely on the administrative regulations.” Kaur, 413 F.3d at 234 (internal quotation marks omitted). “BIA regulations, in turn, provide that ‘[a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.’ ” Id. (quoting 8 C.F.R. § 1003.2(c)(1)). Further, motions to reopen must be filed “no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R. § 1003.2(c)(2), unless the petitioner is able to establish “changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing,” id. § 1003.2(e)(3)(ii). Here, the BIA correctly held that the birth of petitioner’s two children in the United States is evidence of his changed personal circumstances, as opposed to changed conditions in China. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130 (2d Cir.2005) (per curiam) (holding that a change in personal circumstances, namely the birth of a child in the United States, does not fit under the changed circumstances exception provided by 8 C.F.R. § 1003.2(c)(3)(ii)); see also Jian Huan Guan v. BIA, 345 F.3d 47, 49 (2d Cir.2003) (noting that" }, { "docid": "22921853", "title": "", "text": "Esposito v. United States, 368 F.3d 1271, 1274 (10th Cir.2004) (Federal Tort Claims Act); Harms v. IRS, 321 F.3d 1001, 1009-10 (10th Cir.2003) (untimely appeal to the Merit Systems Protection Board). The Piñedas’ untimely motion to reopen does not satisfy the exhaustion requirement. Accordingly, we lack jurisdiction to review the Piñedas’ ineffective-assistance claim and dismiss the First Petition to the extent that it raises that claim. B. Denial of Motion to Reopen The BIA denied the Pinedas’ motion to reopen as untimely. “We review the BIA’s decision on a motion to reopen for an abuse of discretion. The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir.2003) (internal citations and quotation marks omitted). On the other hand, there is no abuse of discretion when “although the BIA’s decision is succinct, its rationale is clear, there is no departure from established policies, and its statements are a correct interpretation of the law.” Infanzon, 386 F.3d at 1362. To avoid unnecessary delay in immigration proceedings, motions to reopen must be brought promptly. “An alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). The 90-day period may be extended, however, by equitable tolling. See Riley v. INS, 310 F.3d 1253, 1258 (10th Cir.2002). To determine whether tolling is appropriate, “[a] simple cursory comparison of the date of filing and the regulatory time line for filing motions is not enough. Specifically, the BIA must review Appellant’s due diligence along with his attempts to comply with the BIA’s requirements detailed in Matter of Lozada ....’’Id. Here, the BIA dismissed the Piñedas’ appeal of the IJ’s decision on December 9, 2002. The period for filing the motion to reopen expired 90 days later, on March 9," }, { "docid": "22792291", "title": "", "text": "motion to reopen where court lacks jurisdiction to review final removal order of alien who committed criminal offense covered by 8 U.S.C. § 1227(a)(2)(C)); Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir.1997) (holding that where jurisdiction to review final deportation order is explicitly withdrawn, authority to review motion to reopen is likewise withdrawn). The government does not dispute that we have jurisdiction because “motions to reopen are the functional equivalent of and analogous to final orders of removal.” Resp. Supp. Br. at 2. We conclude we have jurisdiction over the denial of the motion to reopen. Standard of Review “[W]e review the BIA’s decision on a motion to reopen [only] for an abuse of discretion. The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Gurung v. Ashcroft, 371 F.3d 718, 720-21 (10th Cir.2004) (alteration in original) (further quotation and citation omitted). Here, although the BIA’s decision is succinct, its rationale is clear, there is no departure from established policies, and its statements are a correct interpretation of the law. Discussion To the extent petitioner argues that we are unable to determine on what grounds the BIA denied the motion to reopen, he is wrong. See Pet’r Opening Br. at 14. The motion was denied because it was untimely filed and failed to meet the requirements of Lozada. Admin. R. at 2; see Osei v. INS, 305 F.3d 1205, 1209 (10th Cir.2002). “[T]he BIA uses the criteria set forth in [Lozada] as a screening device and does not generally consider the merits of such claims until the alien has met certain threshold requirements.” Id. at 1209 (citations omitted). Petitioner’s motion to reopen was not filed within ninety days, a fact petitioner did not even mention in the motion itself. See 8 C.F.R. § 1003.2(c)(2). In response to the motion to reopen, the INS noted that even if petitioner were claiming that the time for filing the motion should be subject to equitable tolling, petitioner had failed to comply with the" }, { "docid": "22972032", "title": "", "text": "paragraph (b) of this section [dé-fining the BIA’s appellate jurisdiction] certify such case to the [BIA], The [BIA] in its discretion may review any such case by certification without regard to the [notice] provisions of § 1003.7 if it determines that the parties have already been given a fair opportunity to make representations before the [BIA] regarding the case.... 8 C.F.R. § 1003.1(c). “The BIA occasionally avoids an untimeliness problem by dismissing an untimely appeal and accepting the case on certification.... ” Shamsi v. INS, 998 F.2d 761, 762 n. 2 (9th Cir. 1993) (discussing § 1003.1(e)’s predecessor, 8 C.F.R. § 3.1(e)); see also Desta v. Ashcroft, 329 F.3d 1179, 1185 (10th Cir.2003) (recognizing that certification allows the BIA to review “a case’ that otherwise could not properly be heard”). But Mr. Mahamat does not contend that he ever asked the BIA for certification. See Galvez Pineda, 427 F.3d at 837 (discussing exhaustion requirement). Nor does .he suggest any standards to judge the BIA’s exercise of discretion. See Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (“[I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for abuse of discretion.” (quotation marks omitted)); see, e.g., Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir.2004) (holding that this, court lacked jurisdiction to consider whether the BIA should have sua sponte reopened proceedings under 8 C.F.R. § 1003.2(a), “because there are no standards by which to judge the agency’s exercise of discretion”). Consequently, the certification issue is beyond review. CONCLUSION The BIA correctly decided that Mr. Ma-hamat’s “Motion to Accept Late Filed Appeal or Reinstate Appeal” was untimely. As such, we need not decide whether the BIA abused its discretion in finding the motion number-barred or non-compliant with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The petition for review is DENIED. The Attorney General’s motion for summary denial is also DENIED. See 10th Cir. R. 27.2(A)(1). . A motion to reopen seeks to present evidence that" }, { "docid": "22664746", "title": "", "text": "well-established that the filing of a motion to reopen does not toll the time for filing a petition for review of the BIA’s final exclusion or deportation orders, such as the December 13, 2002 order. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). We are therefore “precluded from passing on the merits of the underlying exclusion proceedings,” and must confine our review to the denial of petitioner’s motion to reopen these proceedings. Zhao v. DOJ, 265 F.3d 83, 90 (2d Cir.2001). We review the BIA’s denial of a motion to reopen for abuse of discretion. Zhao, 265 F.3d at 92-93. “An abuse of discretion may be found in those circumstances where the Board’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Id. at 93 (internal citations omitted). Petitioner’s appellate brief argues the merits of her underlying asylum claim, but does not suggest any reasons why the BIA might have abused its discretion in denying petitioner’s motion to reopen removal proceedings. In any event, upon review of the record of this ease, we conclude that the BIA did not abuse its discretion. The statutory framework governing asylum proceedings “does not provide for motions to reopen or reconsider, and the right to make such motions depends entirely on the administrative regulations.” 1 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 3.05 (2005). BIA regulations, in turn, provide that “[a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1) (2005); see also Zhao, 265 F.3d at 90 (“[A] motion to reopen asks that the proceedings be reopened for new evidence and a new decision, usually after an evidentiary hearing. Such motions must state what new facts would be proven at" }, { "docid": "22697890", "title": "", "text": "four years after learning of the in absentia order of removal against them to file the motion. The Cekics now petition this Court for review of the BIA’s decision. DISCUSSION The Cekics contend that the BIA abused its discretion by denying their motion to reopen their removal proceedings because they received ineffective assistance of counsel, which they believe should have tolled the deadline for filing the motion. We cannot agree. This court reviews the BIA’s decision to affirm an IJ’s denial of a motion to reopen for abuse of discretion. Iavorski v. INS, 232 F.3d 124, 128 (2d Cir.2000). The BIA abuses its discretion when its “decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001) (citations omitted). To be timely, a motion to reopen must be “filed not later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). However, because “[c]laims of ineffective assistance of counsel satisfy the general requirement that motions to reopen present ‘new facts’ that are ‘material and [were] not available and could not have been discovered or presented at the former hearing,’ ” Iavorski, 232 F.3d at 129 (citing 8 C.F.R. § 3.23(b)(3) (2000) (recodified at 8 C.F.R. § 1003.23(b)(3) (2003))), filing deadlines for motions to reopen premised on ineffective assistance may be subject to an equitable toll. Tolling is available if the alien can demonstrate that (1) his counsel’s conduct violated the alien’s constitutional right to due process, and (2) the alien “has exercised due diligence in pursuing the case during the period the alien seeks to toll.” Id. at 135. Both prongs of this test must be met. Thus, no matter how egregiously ineffective counsel’s assistance may have been, an alien will not be entitled to equitable tolling unless he can affirmatively demonstrate that he exercised reasonable due diligence during the time period sought to be tolled. See id. In order" }, { "docid": "22972028", "title": "", "text": "90. In September 2003, the BIA- denied the motion to reconsider, reasoning that there was “no error of law or fact” in the decision to dismiss the appeal.. Id. at 93. Mr. Mahamat retained hew counsel, Leonor Perretta, who filed a bar complaint against Mr. Lawrence. Mr. Mahamat executed a supporting affidavit, stating that in a discussion with Mr. Lawrence in December 2002 or January 2003, Mr. Lawrence faulted UPS for the notice of appeal’s late delivery and indicated that he would file a motion to reconsider with the BIA. Mr. Mahamat contended that Mr. Lawrence rendered ineffective assistance in appealing late. Next, in November 2003, Ms. Perretta filed with the BIA a “Motion to Accept Late. Filed Appeal or Reinstate Appeal.” Id. at 39. On June 22, 2004, the BIA construed the motion as seeking reconsideration and denied it, stating that the motion failed to meet the requirements of Matter of Lozada, 19 I. & N. Dec. 637' (BIA 1988), and that the motion was untimely and number-barred. Mr. Mahamat retained new counsel and petitioned this court for review. DISCUSSION Mr. Mahamat characterizes his “Motion to Accept Late Filed Appeal or Reinstate Appeal” as a motion to reopen, rather than a motion for reconsideration, which, he acknowledges, would be number-barred, see 8 C.F.R. § 1003.2(b)(2) (stating that “[a] party may file only one motion to reconsider”). Even if we accept that characterization, we must still deny the petition. The decision to grant or deny a motion to reopen proceedings is within the BIA’s discretion. 8 C.F.R. § 1003.2(a). We will reverse only if the BIA’s “decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Osei v. INS, 305 F.3d 1205, 1208 (10th Cir.2002) (quotation marks omitted). A motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C. § 1229a(e)(7)(C)(i). Here, Mr. Mahamat’s motion was filed over nine months after the BIA rendered its final decision dismissing" }, { "docid": "22663549", "title": "", "text": "credibility of his testimony. The [petitioner] only raises arguments regarding the increased level of violence directed toward Christians in Pakistan and suggests that mannerisms acquired by [petitioner] in this country will somehow make him a target of anti-American sentiment when he returns to Pakistan. In light of [petitioner’s] failure to present any new evidence relating specifically to the adverse credibility finding upon which the denial of his applications was based, the motion to reopen must be denied. Paul subsequently filed a timely petition for review, challenging the BIA’s denial of his motion to reopen his case. It is to the merits of this petition that we now turn. DISCUSSION We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA 413 F.3d 232, 233 (2d Cir.2005) (per curiam); Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d Cir.2004). “An abuse of discretion may be found in those circumstances where the Board’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001) (internal citations omitted). In the context of a motion to reopen, we are “precluded from passing on the merits of the underlying exclusion proceedings.” Id. at 90. Instead, we “confine our review to the denial of petitioner’s motion to reopen [the] proceedings.” Kaur, 413 F.3d at 233. Thus, in circumstances, such as those before us, where an asylum applicant does not file a timely appeal disputing the BIA’s affirmance of the IJ’s credibility ruling, a motion to reopen does not provide a collateral route by which the alien may challenge the validity of the original credibility determination. See Ke Zhen Zhao, 265 F.3d at 89-90; see also Boudaguian v. Ashcroft, 376 F.3d 825, 827 (8th Cir.2004) (concluding that a federal appeals court “lack[ed] jurisdiction to review the BIA’s initial order because the [applicants] did not file a timely petition for review of" }, { "docid": "22422943", "title": "", "text": "a motion to reopen does not toll the time for filing a petition for review of the BIA’s final exclusion or deportation orders .... ” Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (citing Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995)). “We are therefore ‘precluded from passing on the merits of the underlying exclusion proceedings,’ and must confine our review to the denial of petitioner’s motion to reopen these proceedings.” Id. (quoting Ke Zhen Zhao v. DOJ, 265 F.3d 83, 90 (2d Cir.2001)). We review the BIA’s denial of a motion to reopen for abuse of discretion. Ke Zhen Zhao, 265 F.3d at 92-93. “An abuse of discretion may be found in those circumstances where the Board’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Id. at 93 (citations omitted). BIA regulations state that “[a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1) (2005); see also Ke Zhen Zhao, 265 F.3d at 90 (“[A] motion to reopen asks that the proceedings be reopened for new evidence and a new decision, usually after an evidentiary hearing. Such motions must state what new facts would be proven at a hearing and be supported by affidavits or other evidentiary material.”) (citation omitted). Both a failure to offer such evidence and a failure to establish a prima facie case for the underlying substantive relief sought are proper grounds on which the BIA may deny the motion to reopen. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). The BIA can also properly deny a motion to reopen where it determines that, even if petitioner were eligible for asylum, he would not be entitled to a discretionary grant" }, { "docid": "22921843", "title": "", "text": "HARTZ, Circuit Judge. This case deals with two separate petitions by Mr. Luis Galvez Piñeda and his family for review of decisions by the Board of Immigration Appeals (BIA or Board). The First Petition seeks review of the BIA’s summary dismissal of the Pinedas’ appeal for failure to file a brief, and the Second Petition seeks review of the BIA’s denial of their motion to reopen as untimely. We affirm both decisions of the BIA. Mr. Piñeda entered the United States on a visitor’s visa on July 28, 1999, and his wife and four teenaged children followed several months later. After remaining past the time allowed on their visas, the Piñedas applied for asylum and withholding of removal. On November 13, 2001, the immigration judge (IJ) denied the applications and ordered them removed to the Philippines. They filed a timely notice of appeal with the BIA. When their counsel failed to file a brief in support of the appeal, after indicating on the notice-of-appeal form that they would do so, the BIA summarily dismissed the appeal on December 9, 2002, as authorized by 8 C.F.R. § 1003.1(d)(2)(E) (formerly 8 C.F.R. § 3.1(d)(2)(i)(E)). The Piñedas then acquired new counsel and on June 22, 2004, filed a motion to reopen with the BIA, claiming that their first counsel’s ineffective assistance on appeal had deprived them of due process. See 8 C.F.R. § 1003.2(c). The BIA denied that motion because it was not filed within the 90-day period set by 8 C.F.R. § 1003.2(c)(2), and the Piñedas had not shown sufficient diligence to justify equitable tolling of the period. Both the First and Second Petitions challenge final orders of removal that are subject to our review under 8 U.S.C. § 1252(a)(1). See Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir.2004) (the BIA’s denial of a motion to reopen “is considered a final, separately appealable order”). The petitions have been consolidated as required by 8 U.S.C. § 1252(d)(6). I. FACTS A. Background Mr. Piñeda, his wife, Maria, and their children, Johanna, Robinson, Darwin and Amiel, are all natives and citizens of the Philippines." } ]

[ { "docid": "22657226", "title": "", "text": "a federal court’s power to disturb state-court convictions. The United States District Court for the Northern District of Texas, after reviewing the evidence before the state trial court, determined that petitioner failed to establish a constitutional violation warranting habeas relief. The Court of Appeals for the Fifth Circuit, concluding there was insufficient merit to the case, denied a certificate of appeal- ability (COA) from the District Court’s determination. The COA denial is the subject of our decision. At issue here are the standards AEDPA imposes before a court of appeals may issue a COA to review a denial of habeas relief in the district court. Congress mandates that a prisoner seeking postconviction relief under 28 U. S. C. § 2254 has no automatic right to appeal a district court’s denial or dismissal of the petition. Instead, petitioner must first seek and obtain a COA. In resolving this case we decide again that when 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. Slack v. McDaniel, 529 U. S. 473, 481 (2000). Consistent with our prior precedent and the text of the habeas corpus statute, we reiterate that a prisoner seeking a COA need only demonstrate “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. Slack, supra, at 484. Applying these principles to petitioner’s application, we conclude a COA should have issued. I A Petitioner, his wife Dorothy Miller-El, and one Kenneth Flowers robbed a Holiday Inn in Dallas, Texas. They emptied the cash drawers and ordered two employees, Doug Walker and Donald Hall, to lie on the floor. Walker and Hall were gagged with strips of fabric, and their hands and feet were bound. Petitioner asked Flowers if he was going" } ]

[ { "docid": "11429841", "title": "", "text": "of ap-pealability to include his Apprendi claim. II. Analysis A. Apprendi Claim On appeal of a district court’s decision to grant or to deny an application for writ of habeas corpus, we review all questions of law de novo. Small v. Endicott, 998 F.2d 411, 414 (7th Cir.1993). In order to appeal a district court’s ruling on a writ of habeas corpus, an applicant is required to obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B); Fed. R.App. P. 22(b)(1). Because the certificate in this case is limited to only the ineffective assistance claims, we will first address Rodriguez’s petition to expand the certificate to include his claim under Apprendi. “A certificate of appealability may issue [by a district or circuit judge] ... only if the applicant has made a substantial showing of the denial of a constitutional right ... [and the certificate] shall indicate which specific issue or issues satisfy that showing.” 28 U.S.C. § 2253(c); see also Williams v. Parke, 133 F.3d 971, 975 (7th Cir.1997). Rodriguez fails to make this showing, and therefore his request to expand the certificate of appealability is denied. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), a substantial showing of a denial of a constitutional right “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, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Here, the district court did not address the substantive issues underlying Rodriguez’s proposed habeas claim under Apprendi, but instead denied his post-judgment motions that sought to raise that claim. When a district court denies a habeas claim on procedural grounds, a circuit court should only expand the certificate to include that claim if a prisoner at least demonstrates “that jurists of reason would find it debatable whether the petition states a valid claim" }, { "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": "21947351", "title": "", "text": "molested his niece on the weekend of August 9-11,1997. 7. Petitioner is entitled to relief with respect to the charges at No. 3206 of 1997, and a writ of habeas corpus should issue as to them. 8. Counsel’s error did not deny Petitioner a fair trial with respect to the other crimes charged and, accordingly, Petitioner is not entitled to relief with respect to the remainder of his state court sentence. E. CERTIFICATE OF APPEALA-BILITY Section 102 of the Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2253(as amended)) codified standards governing the issuance of a certificate of appealability for appellate review of a district court’s disposition of a habeas petition. Amended Section 2253 provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” Where the federal district court has rejected a constitutional claim on its merits, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong...” Szuchon v. Lehman, 273 F.3d 299, 312 (3d Cir.2001) quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). A petitioner meets this standard if he can show that the issue “is debatable among jurists, or that a court could resolve the issue differently, or that the question deserves further proceedings.” McCracken v. Gibson, 268 F.3d 970, 984 (10th Cir.2001). Under 28 U.S.C. § 2253(c)(3), the district court must identify which specific issues satisfy the standard. A certificate of appealability should be denied. III. CONCLUSION Wherefore, on the basis of the foregoing, it is respectfully recommended that the instant petition for writ of habeas corpus be granted at to the charges relating to August 9-11, 1997 only, and dismissed in all other respects. In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of service to file writ ten objections to this Report and Recommendation. Any party opposing the objections shall" }, { "docid": "12817478", "title": "", "text": "as well as a certificate of appealability. Gonzales v. McKune, 76 F.Supp.2d. 1222, 1229 (D.Kan.1999). In December 1999, Gonzales filed notice of appeal seeking review by this court. DISCUSSION I. Standard of Review and Certificate of Appealability The Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to Gonzales’s case because he filed his § 2254 petition after April 24, 1996. See Hooks v. Ward, 184 F.3d 1206, 1213 (10th Cir.1999). Under AEDPA, Gonzales must obtain a Certificate of Appealability (“COA”) before he can appeal “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court.” 28 U.S.C. § 2253(c)(1)(A). He is not entitled to a COA unless he can make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court rejected his § 2254 petition on the merits, to satisfy § 2253(c) Gonzales 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). We construe Gonzales’s notice of appeal, filed on December 30, 1999, to be a request for a COA, and because he has met the standard set forth in Slack, his request for a COA is granted. The standard of review under AEDPA is set forth in 28 U.S.C. § 2254(d), which provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Claims of ineffective assistance of counsel involve mixed questions" }, { "docid": "21731530", "title": "", "text": "court then issued a certificate of probable cause for appeal. Petitioner then filed a notice of appeal. On October 12, 2000, this Court entered an order ruling that the AEDPA applies to this case, and that the district court’s issuance of a certificate of probable cause under the pre-AEDPA version of 28 U.S.C. § 2253(c) was ineffective. We elected to treat Cooey’s brief as an application for a certificate of appealability. After expressing our tentative view that Cooey had not made a “substantial showing of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2) & (3) with respect to any of the issues raised, we directed Cooey to show cause why we should not deny the application for a certificate. Attached to our order was an appendix summarizing our tentative view as to each issue. The parties filed their respective briefs responding to the show cause order, and the matter was argued on January 30, 2002. II.Application for Certificate of Appealability Under the AEDPA, an appeal from the denial of a writ of habeas corpus may not be taken unless a circuit justice or judge issues a certificate of appealability. A certificate of appealability may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We may also reject an issue for appeal if the procedural default doctrine applies. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). However, this determination has two components, “one directed at the underlying constitutional claims and one directed at the district court’s procedural holding.” Id. at 483, 120 S.Ct. 1595. When the district court denies a habeas petition on procedural grounds alone, the certificate of appealability should issue when the applicant “shows, at least, that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 484, 120 S.Ct. 1595. Cooey raises the following issues in his brief as broadly stated in seven categories, with numerous subissues, and asks us to grant a certificate of" }, { "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": "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": "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": "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": "1287410", "title": "", "text": "ORDER DENYING CERTIFICATE OF APPEALABILITY TIMOTHY M. TYMKOVICH, Circuit Judge. Jonathan Lee Roderick, a state prisoner appearing pro se, seeks a certificate of appealability (COA), see 28 U.S.C. § 2253(c), allowing him to appeal the order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Because we determine Roderick has not established that “jurists of reason could conclude that the District Court’s dismissal on procedural grounds was debatable or incorrect,” Slack v. McDaniel, 529 U.S. 473, 485, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), we DENY a COA and DISMISS the appeal. I. Background Roderick was convicted in Wyoming state court of felony murder, aggravated burglary, and unauthorized use of a vehicle. The Wyoming Supreme Court affirmed Roderick’s conviction in 1993, except as to the judgment and sentence, which it modified by vacating a fifteen to twenty-five year term for aggravated burglary. See Roderick v. State, 858 P.2d 538, 541 (Wyo.1993). Roderick then filed a state court petition for post-conviction relief in 2007. That petition was denied by the Wyoming state courts. Finally, in 2008 Roderick filed a Petition for Writ of Review, which the Wyoming Supreme Court also denied. Roderick filed the instant § 2254 petition in federal district court in July 2008. The district court concluded the petition was time-barred and dismissed the case. See 28 U.S.C. § 2244(d). This appeal followed. II. Discussion Where a district court dismisses a § 2254 petition on procedural grounds, a petitioner seeking a COA must establish that reasonable jurists would find it debat able both whether the district court was correct in its procedural ruling, and whether the petition states a valid claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595; Fleming v. Evans, 481 F.3d 1249, 1254-56 (10th Cir.2007). If a procedural bar is present and the district court correctly invokes 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" }, { "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": "5625772", "title": "", "text": "the time for filing their Answer until June 18, 2002. (D.I.11.) Re spondents filed their Answer on that date. (D.I.12.) Accordingly, Petitioner’s motion for a default judgment will be denied. F. Certificate of Appealability Finally, the Court must determine whether a certifícate of appealability should issue. See Third Circuit Local Appellate Rule 22.2. The Court may issue a certificate of appealability only if Petitioner “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 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 v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “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.” Id. For the reasons discussed above, the current Petition is barred by the one-year period of limitation. The Court is convinced that reasonable jurists would not debate otherwise. Petitioner, therefore, has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not issue. III. CONCLUSION For the reasons stated, the Court will dismiss as untimely the Petition for Writ of Habeas Corpus filed by Petitioner Daniel M. Woods. The Court will also deny his motions for appointment of counsel and for a default judgment. The Court will not issue a certificate of appealability. An appropriate Order will be entered. . According to Respondents, these motions were: (1) filed on July 1, 1998, and denied on August 13, 1998; (2) filed on September 10, 2001, and September 25, 2001, both denied on September 25, 2001; and (3) filed on December 18, 2001, and denied on January" }, { "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": "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": "11812487", "title": "", "text": "ORDER DENYING CERTIFICATE OF APPEALABILITY PAUL KELLY, JR., Circuit Judge. Petitioner Daniel Dill, a state prisoner proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habe-as petition. We deny his request for a COA and dismiss the appeal. On October 29, 2003, Mr. Dill was convicted by a jury in Oklahoma state court on five felony counts. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction on January 4, 2005. Mr. Dill did not seek a writ of certiorari with the United States Supreme Court. On March 23, 2006, he applied for post-conviction relief in state district court. See Moore v. Gibson, 27 P.3d 483, 484 n. 1 (Okla.Crim.App.2001) (explaining that “an application for post-conviction relief in a non-capital case is always deemed to be timely filed” because there are no applicable time limitations). The motion was denied and that decision was affirmed by the OCCA on February 21, 2007. On April 4, 2007, Mr. Dill submitted his federal habeas petition to prison officials for mailing, and it was filed on April 16, 2007. The district court determined that the petition was time-barred under the one-year limitations period in 28 U.S.C. § 2244(d), and that equitable tolling did not apply. As the district court dismissed the habeas petition on procedural grounds, we may issue a COA only if Mr. Dill makes a substantial showing 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); see 28 U.S.C. § 2253(c)(2). ■ [1] The one-year limitations period for filing a federal habeas petition runs from the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A conviction is “final” (and the one-year limitations period begins to" }, { "docid": "22911937", "title": "", "text": "petition for a writ of habeas corpus, and the Court gave the parties approximately a month to notify it if they sought additional discovery and a hearing. Id. at 791. On January 18, 2002, however, Judge Dalzell gave way to the Commonwealth’s fourth motion seeking his recusal. See Lambert v. Blackwell, 205 F.R.D. 180 (E.D.Pa.2002). Lambert’s petition was consequently transferred to Judge Anita Brody of the Eastern District of Pennsylvania. After holding a hearing on the Commonwealth’s motion to dismiss, Judge Brody denied Lambert’s petition and dismissed it with prejudice. Judge Brody concluded that, contrary to Judge Dalzell’s previous decision, the PCRA Court’s determinations were not null and void and were entitled to deference under AEDPA. After reviewing Lambert’s claims accordingly, Judge Bro-dy concluded that they were without merit. The District Court granted Lambert a certificate of appealability, and Lambert timely appealed. The Commonwealth also timely filed a cross-appeal. II. JURISDICTION AND STANDARD OF REVIEW The District Court exercised jurisdiction under 28 U.S.C. § 2254, and the District Court’s order dismissing Lambert’s habeas petition is a final decision for purposes of 28 U.S.C. § 1291. Yet Lambert must surmount an additional hurdle before we can properly exercise appellate jurisdiction over her appeal. We only have jurisdiction if this Court or a District Court has properly issued a certificate of appealability pursuant to 28 U.S.C. § 2253(c). See United States v. Cepero, 224 F.3d 256, 261-62 (3d Cir.2000) (en banc). 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). In addition, a COA must “indicate which specific issue or issues satisfy” that standard. 28 U.S.C. § 2253(c)(3). Here, the District Court failed to specify which of the voluminous issues Lambert raised in her habeas petition" }, { "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": "22425879", "title": "", "text": "LUCERO, Circuit Judge. Pro se petitioner Raymond J. Hall, an Oklahoma state prisoner, seeks a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) to challenge the district court’s dismissal of his petition for a writ of habeas corpus as untimely. Because we conclude that equitable tolling was not fully explored, we grant his request for a COA, reverse the dismissal of his petition as time-barred, and remand. I Hall was convicted of first-degree rape in Muskogee County District Court and had his sentence and judgment entered on May 7, 1998. On September 14, 1998, he filed a direct appeal with the Oklahoma Court of Criminal Appeals (“OCCA”). The OCCA affirmed his conviction on April 23,1999. On November 8, 1999, Hall filed an application for post-conviction relief in Muskogee County District Court. This application was denied on February 29, 2000. On March 10, 2000, he filed a petition in error seeking to appeal the denial of his post-conviction application, and on April 6, 2000, the OCCA denied the petition. On April 19, 2000, Hall filed his first petition for a writ of habeas corpus in federal district court, along with an application to proceed in forma pauperis (“IFP”). On August 15, 2000, the district court denied Hall’s IFP motion and ordered him to pay the five-dollar filing fee. Hall failed to pay the fee, and on January 24, 2001, the case was dismissed without prejudice. On March 7, 2001, Hall filed the instant petition for a writ of habeas corpus, which was dismissed as untimely by the district court. Hall seeks to appeal. II This Court may issue a COA only if an applicant “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Meeting this standard requires “a demonstration that ... 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, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542" }, { "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": "4512398", "title": "", "text": "ORDER AND JUDGMENT McKAY, Circuit Judges. After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. State prisoner Dennis Lucero seeks to appeal from the dismissal of his 28 U.S.C. § 2254 habeas petition. Petitioner pleaded guilty to second degree murder and aggravated robbery, for which he was sentenced to consecutive terms of thirty and sixteen years’ imprisonment, respectively. Petitioner sought a writ of habeas corpus in the United States District Court for the District of Colorado, alleging that his due process and equal protection rights were violated because he was sentenced to consecutive rather than concurrent terms. The district court denied the petition, holding that Petitioner had filed the petition well after the one-year statute of limitations under 28 U.S.C. § 2244(d) and had not shown the extraordinary circumstances necessary to invoke an equitable tolling of the statute. The court subsequently denied Petitioner’s Rule 59(c) motion to alter or amend the judgment, and further declined to grant a certificate of appealability required by 18 U.S.C. § 2258(c) to appeal the dismissal of a § 2254 petition. Petitioner then applied to this court for a certificate of appealability. In order for this court to grant a certificate of appealability, Petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, Petitioner must demonstrate 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, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). It is true that “ § 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). However, equitable tolling" } ]

[ { "docid": "22652197", "title": "", "text": "intimidating interrogation at the scene of their initial detention. Cf. State v. Roberti, 293 Ore. 59, 95, 644 P. 2d 1104, 1125 (1982) (Linde, J., dissenting) (predicting the emergence of a rule that “a person has not been significantly deprived of freedom of action for Miranda purposes as long as he is in his own car, even if it is surrounded by several patrol cars and officers with drawn weapons”), withdrawn on rehearing, 293 Ore. 236, 646 P. 2d 1341 (1982), cert. pending, No. 82-315. The net result, respondent contends, will be a serious threat to the rights that the Miranda doctrine is designed to protect. We are confident that the state of affairs projected by respondent will not come to pass. It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.” California v. Beheler, 463 U. S. 1121, 1125 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him “in custody” for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam). Admittedly, our adherence to the doctrine just recounted will mean that the police and lower courts will continue occasionally to have difficulty deciding exactly when a suspect has been taken into custody. Either a rule that Miranda applies to all traffic stops or a rule that a suspect need not be advised of his rights until he is formally placed under arrest would provide a clearer, more easily administered line. However, each of these two alternatives has drawbacks that make it unacceptable. The first would substantially impede the enforcement of the Nation’s traffic laws — by compelling the police either to take the time to warn all detained motorists of their constitutional rights or to forgo use of self-incriminating statements made by those motorists — while doing little to protect citizens’ Fifth Amendment rights. The second would enable the" } ]

[ { "docid": "10529045", "title": "", "text": "the FBI agents subjected him to custodial interrogation without the appropriate Miranda safeguards and the district court should have suppressed the confessions. The issue presented raises a mixed question of fact and law. A. Availability of Procedural Safeguards The procedural safeguards embodied in the Miranda decision come into play only when police interrogate a suspect in a custodial setting. See, e.g., Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222 (1985); Miranda, 384 U.S. at 444, 478, 86 S.Ct. at 1612, 1630; United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir.1990); United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.1989), In Miranda, the Supreme Court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 86 S.Ct, at 1612 (footnote omitted). In undertaking a custody determination, “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984) (footnote omitted). In essence, we look at whether, under the totality of the circumstances, the suspect subjectively and reasonably believed that the police curtailed his freedom of movement to a “ ‘degree associated with formal arrest.’ ” Griffin, 922 F.2d at 1347 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam), quoted in Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150). B. Custody Analysis The issue of whether a suspect is in custody for the purpose of Miranda has generated extensive litigation. Even the Supreme Court has observed that “the task of defining ‘custody’ is a slippery one.” Elstad, 470 U.S. at 309, 105 S.Ct. at 1293. The present case, which presents a very close question, is no exception. We are bound, however, by the analysis set forth in Griffin, in which this court isolated six “common indicia of custody.” Griffin, 922 F.2d at 1349. The “indicia of custody” inquiry" }, { "docid": "22871391", "title": "", "text": "complete narrative of his involvement without prompting by the officers. He stated that he was not threatened in any way____ There is no evidence that the statement was coerced in any way or that the defendant was not completely competent when the statement was made.” Id. at 82. Accordingly, the trial court concluded that the January 30th confessions were “voluntarily and freely given.” Id. Finally, the court ruled that “defendant knowingly, voluntarily and intelligently waived his right to counsel and his right to remain silent.” Id. In Miranda, the Supreme Court held that, in order to protect the privilege against self-incrimination, law enforcement officers must administer prophylactic warnings regarding the privilege to any suspect subjected to “custodial interrogation.” Id. at 444, 86 S.Ct. at 612. The Court explained that such interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. If the warnings are not administered, the prosecution may not use statements made by the suspect, “whether exculpatory or inculpatory.” Id. Since Miranda, the Supreme Court has elaborated on its definition of when a suspect is in custody for purposes of administering Miranda warnings. According to the Court, the ultimate inquiry in deciding the custody question “is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam)). To measure the degree of restraint on the freedom of a suspect’s movement, a court must examine “how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3152, 82 L.Ed.2d 317 (1984). The Supreme Court has also held that a suspect is not in custody for purposes of Miranda simply because he is the “focus” of an investigation. See Beckwith v. United States, 425 U.S." }, { "docid": "22958326", "title": "", "text": "warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A person subjected to custodial interrogation is entitled to the procedural safeguards prescribed by Miranda, and therefore, any statements a suspect makes during custodial interrogation are inadmissible in the prosecution’s case in chief unless prior Miranda warnings have been given. See Stansbury v. California, — U.S. -, -, 114 S.Ct. 1526, 1528, 128 L.Ed.2d 293 (1994) (per curiam); Berkemer v. McCarty, 468 U.S. 420, 434, 104 S.Ct. 3138, 3147, 82 L.Ed.2d 317 (1984). A suspect is “in custody” for Miranda purposes if the suspect has been formally arrested or if he is questioned under circumstances in which his freedom of action is curtailed “of the degree associated with a formal arrest.” Stansbury, — U.S. at -, 114 S.Ct. at 1529 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam)). The magistrate judge recommended that the statements during the interrogation be suppressed based on his finding that a reasonable person in the defendants’ position would have understood that he was in custody and not free to leave from the beginning of the encounter, when the defendants were told to raise their hands. Relying on Berkemer, the district court rejected the magistrate’s recommendation. In Berkemer, the Supreme Court held that Miranda warnings are not required when a person is questioned during a routine traffic stop or stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,20 L.Ed.2d 889 (1968). Berkemer, 468 U.S. at 437-42, 104 S.Ct. at 3148-52. The district court concluded that the initial encounter between the deputies and the defendants was equivalent to a Terry stop. The court reasoned that the initial approach and inquiry “was of extremely limited intrusiveness and was entirely reasonable under the Fourth Amendment.” Joint Appendix (“J.A.”) 100. We review for clear error the district court’s factual findings as to whether officers sufficiently seized a person so as to require the giving of Miranda warnings, and we review de novo the court’s determination of whether the officers had the" }, { "docid": "7930944", "title": "", "text": "than an arrest” and was therefore a reasonable seizure under the Fourth Amendment. B. Miranda Warnings Burns contends that the statements she made to Agent Snyder should have been suppressed because she was not read Miranda warnings prior to the statements. In order to protect a citizen’s right against self-incrimination guaranteed by the Fifth Amendment, the Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that suspects must be read certain warnings before they are subjected to “custodial interrogation.” Id. at 444, 86 S.Ct. at 1612. A suspect must be both “in custody” and subject to “interrogation” to trigger the Miranda warnings requirement. As a threshold matter, therefore, we must determine whether Burns was in custody during execution of the search warrant. A person is in custody for purposes of Miranda if that person is either formally arrested or has suffered a “ ‘restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)). In determining whether a suspect is in custody, courts look at “how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). This determination is based on the “totality of the circumstances.” United States v. Fazio, 914 F.2d 950, 954 (7th Cir.1990). “‘The accused’s freedom to leave the scene and the purpose, place and length of interrogation are all relevant factors in making this determination.’ ” United States v. Hocking, 860 F.2d 769, 773 (7th Cir.1988) (quoting United States v. Helmet, 769 F.2d 1306, 1320 (8th Cir.1985)). In considering whether a suspect is in custody for purposes of Miranda, courts have often consulted the line of Fourth Amendment cases, beginning with Terry v. Ohio, discussing whether certain seizures are “reasonable” absent probable cause. For instance, in Berkemer, the Supreme Court addressed the issue of “whether the" }, { "docid": "3887810", "title": "", "text": "that the totality of the circumstances indicated that defendant’s consent to the search of his wallet was not freely and voluntarily given inasmuch as it occurred in a coercive atmosphere, no Miranda warnings were given, the inspectors made a misrepresentation to Carter to induce his consent, and Carter was not informed that he was not required to produce his wallet. The United States appeals from the district court’s orders. We agree with Carter’s contention that Miranda warnings should have been given earlier in the questioning than they were. The warnings must be given before interrogation begins when a suspect is taken into custody or otherwise significantly deprived of his freedom of action. Miranda, 384 U.S. at 444, 467, 86 S.Ct. at 1624; Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 3144-45, 82 L.Ed.2d 317 (1984). In determining whether a suspect is “in custody,” the “relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151. The test is not merely whether Carter believed he was free to leave; rather, we must determine whether he reasonably believed that his “freedom of action [was] curtailed to a ‘degree associated with formal arrest.’ ” Id. at 440, 104 S.Ct. at 3150 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam)); United States v. Streifel, 781 F.2d 953, 961 (1st Cir.1986); W.R. LaFave & J.H. Israel, 1 Criminal Procedure § 6.6, at 75 (Supp.1989). Our conclusion concerning custody must arise from an examination of the totality of the circumstances. United States v. Lanier, 838 F.2d 281, 285 (8th Cir.1988) (per curiam). We review the district court’s determination on this issue under the “clearly erroneous” test, and “must affirm unless the decision of the district court is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, in light of the entire record, we are left with a firm and definite conviction that a mistake has been made.” United States v. Jorgensen, 871 F.2d 725, 728 (8th" }, { "docid": "1942626", "title": "", "text": "get dressed, Agent Boylan escorted him to the bedroom and did a quick search to ensure that there was no telephone in the room that Dr. Czichray might use to alert others about the FBI’s interview. When Dr. Czi-chray needed to use the bathroom, a similar check was performed. While the agents informed Dr. Czichray that he was free to end the interview at any time, they also told him that if he did not cooperate they would “light up” his world and tell insurance companies to stop making legitimate payments to his chiropractic practice. After nearly seven hours, one of the agents wrote out a statement outlining what Dr. Czichray had said during the interview, which included an assertion that Dr. Czichray had not been “threatened, coerced, or promised ... anything.” Dr. Czichray signed the statement but was never informed of his Mircmda rights. II. Law enforcement officers are bound to give the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), only when a suspect is interrogated in a so-called custodial setting. See, e.g., Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). In Miranda, 384 U.S. at 444, 86 S.Ct. 1602, the Supreme Court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Courts do not determine whether a suspect is in custody from the perspective of the interrogator; “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In other words, the question is whether, viewing the totality of the circumstances, a reasonable person would have believed that the police curtailed his or her freedom of movement to a “degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam). Admittedly, “the task of defining ‘custody’ is a slippery one,” Elstad," }, { "docid": "505471", "title": "", "text": "of our finding (in contrast to Royer) that she had not been illegally arrested at the time of the body search, the derivative-evidence rule and inevitable-discovery exception provide alternative bases for finding the poisoned-fruit argument unpersuasive. See United States v. Cherry, 759 F.2d at 1207,1209-10 & n. 20. V. CONCLUSION. Based upon the foregoing, Galberth voluntarily consented to the search of her person, and that consent was not tainted by any previous illegal seizure. Even if Gal-berth was placed “in custody” at the time of her body search, the evidence should not have been suppressed, because it was non-testimonial and the derivative evidence rule was not triggered by an actual constitutional violation. Accordingly, the district court did not err in denying Galberth’s motion to suppress, and the judgment is AFFIRMED. . Absent \"other fully effective means,” Miranda warnings must be administered prior to \"custodial interrogation.” Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Miranda Court first defined custodial interrogation to “mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444, 86 S.Ct. at 1612. The meaning of custody has been refined so that “the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam)); see also Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Minnesota v. Murphy, 465 U.S. 420, 430-31, 104 S.Ct. 1136, 1143-44, 79 L.Ed.2d 409 (1984). The Supreme Court has also explained that \"the only relevant inquiry is how a reasonable man in the suspect’s position would have understood the situation.” Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151. In our recent en banc opinion in United States v. Bengivenga, 845 F.2d 593 (5th Cir.1988)" }, { "docid": "7500787", "title": "", "text": "at 3:45 p.m. and Bad Hand left with Martha. He was not arrested until the original indictment was returned in late September, 1995. DISCUSSION A. Custody. The Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) held that a person questioned by law enforcement officers after being \"taken into custody or otherwise deprived of his freedom of action in any significant way\" must first \"be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.\" 384 U.S. at 444, 86 S.Ct. at 1612. In determining whether an individual is in \"custody\", a court must \"examine the extent of the physical or psychological restraints placed on the [individual]\" from an objective standpoint in light of the totality of the circumstances present. United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir.1990); see also, Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151-52, 82 L.Ed.2d 317 (1984); United States v. Carter, 884 F.2d 368, 370 (8th Cir.1989). The \"ultimate inquiry, [however], is simply whether there [was] a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest.\" California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam)). Here, after applying the relevant inquiry set forth in Griffin and other precedent handed down by the Supreme Court and the Eighth Circuit, and after considering the various factors outlined therein, this Court is unable to conclude that Bad Hand was in \"custody\" so as to trigger the protections of Miranda. Bad Hand's statements to Davis were made after he was advised of his Miranda rights and waived the same. Although the record does not indicate whether Bad Hand made any incriminating statements before being advised of his rights, even if he did, a reasonable man in" }, { "docid": "19884827", "title": "", "text": "everyone they question. Id. On its own terms, Miranda applies only to “custodial interrogation^].” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thus, “Miranda rights need only be given to a suspect at the moment that suspect is ‘in custody’ and the questioning meets the legal definition of ‘interrogation.’ ” United States v. Chee, 514 F.3d 1106, 1112 (10th Cir.2008) (quoting United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir.1993)). Because the government conceded Bridge’s conversation with Jones was in the form of an interrogation, in resolving Jones’s appeal we need only determine whether she was in custody. Whether a person is in custody for Miranda purposes depends on the type of the encounter with police. Of the three types of police-citizen encounters — voluntary cooperation, an investigatory detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and a formal arrest — Miranda’s custody element is triggered only in situations associated with formal arrests. In other words, “[c]ase law is well established that a defendant is not in custody under either of the first two encounters and therefore Miranda warnings need not usually be given.” United States v. Griffin, 7 F.3d 1512, 1516 (10th Cir.1993) (citing Berkemer v. McCarty, 468 U.S. 420, 437-40, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). “It is settled that the safeguards prescribed by Miranda become applicable [only when] a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’ ” Berkemer, 468 U.S. at 440, 104 S.Ct. 3138 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)). Only then can we say a suspect is in custody. Whether a suspect is in custody represents an objective determination. See generally 2 Wayne R. LaFave et al., Criminal Procedure § 6.6(c) (3d ed. 2007) [Criminal Procedure ]. “We therefore must determine whether ‘a reasonable person in the suspect’s position would have understood the situation as the functional equivalent of formal arrest.’ ” Chee, 514 F.3d at 1112 (quoting Berkemer, 468 U.S. at 442, 104 S.Ct." }, { "docid": "22476083", "title": "", "text": "warning, those practices involve inherently coercive pressures which compel an individual to make self-incriminating statements. Miranda, 384 U.S. at 439, 86 S.Ct. at 1609. Miranda accordingly requires that a warning as to the availability of the privilege against self-incrimination and to the assistance of counsel be issued prior to questioning whenever a suspect is (1) interrogated (2) while in custody. Custody determinations are obviously mixed questions of law and fact which require that the entire circumstances of the particular case be carefully assessed. Carter, 884 F.2d at 371. It is undisputed that Griffin was being interrogated within the meaning of the Miranda rule. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980) (interrogation includes direct questioning or any practice reasonably likely to evoke an incriminating response from a suspect). Thus, in examining whether Miranda has application to this case, the court must examine whether or not the interrogation of Griffin was custodial. The court finds that this was a custodial interrogation. B.In Custody Custody occurs either upon formal arrest or under any other circumstances where the suspect is deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 3144-45, 82 L.Ed.2d 317 (1984). In determining whether a suspect is “in custody” at a particular time we examine the extent of the physical or psychological restraints placed on the suspect during interrogation in light of whether a “reasonable person in the suspect’s position would have understood his situation” to be one of custody. Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151; United States v. Carter, 884 F.2d 368, 370 (8th Cir.1989). If Griffin believed his freedom of action had been curtailed to a “degree associated with formal arrest,” and that belief was reasonable from an objective viewpoint, then Griffin was being held in custody during the interrogation. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983); Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150. The determination" }, { "docid": "22476084", "title": "", "text": "formal arrest or under any other circumstances where the suspect is deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 3144-45, 82 L.Ed.2d 317 (1984). In determining whether a suspect is “in custody” at a particular time we examine the extent of the physical or psychological restraints placed on the suspect during interrogation in light of whether a “reasonable person in the suspect’s position would have understood his situation” to be one of custody. Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151; United States v. Carter, 884 F.2d 368, 370 (8th Cir.1989). If Griffin believed his freedom of action had been curtailed to a “degree associated with formal arrest,” and that belief was reasonable from an objective viewpoint, then Griffin was being held in custody during the interrogation. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983); Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150. The determination of custody arises from an examination of the totality of the circumstances. Carter, 884 F.2d at 370, citing, United States v. Lanier, 838 F.2d 281, 285 (8th Cir.1988) (per curiam). C.Standard of Review A district court’s conclusions concerning custody are reviewed under the “clearly erroneous” standard and the cir cuit court “must affirm unless the decision of the district court is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or in light of the entire record we are left with a firm and definite conviction that a mistake has been made.” United States v. Jorgensen, 871 F.2d 725, 728 (8th Cir.1989) (clearly erroneous standard applies to motions to suppress; custody issue reviewed along with other issues); United States v. O’Connell, 841 F.2d 1408, 1414 (8th Cir.1988); United States v. Ross, 713 F.2d 389, 392 (8th Cir.1983). D.Relevant Factors Previous decisions of this court have stated that the relevant factors to be considered in making a determination of custody include an accused’s freedom to leave the scene, and the purpose, place and" }, { "docid": "3547084", "title": "", "text": "Nor do we believe that the issue is crucial to the resolution of the case before us. As we noted above, this court always has recognized that deferential review is appropriate on matters of witness credibility, and this concern is a major factor in the matter before us. Although we are in no worse position than the district court to determine whether correct principles of law were applied, as the following discussion makes clear, no such error was committed in this case. 2. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court established “rules of police procedure applicable to ‘custodial interrogation.’ ” Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 713, 50 L.Ed.2d 714 (1977). These rules require that a defendant be given “a full and effective warning of his rights at the outset of the interrogation process.” Miranda, 384 U.S. at 445, 86 S.Ct. at 1612. Custodial interrogation is “questioning initiated by law enforcement officers after a per son has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444, 86 S.Ct. at 1612. Because Mr. Jones was not placed under arrest prior to or during the questioning on March 6 and 7,1992, the district court correctly recognized that the appropriate inquiry is whether, at the time of the questioning, Mr. Jones was subject to a “ ‘restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (quoting Mathiason, 429 U.S. at 495, 97 S.Ct. at 714). This inquiry is determined from the view of “how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). Miranda warnings are not required merely because the individual questioned by law enforcement officers is a suspect or is the focus of a criminal investigation. Mathiason, 429 U.S. at 495, 97 S.Ct. at 714. Further, the questioning of a" }, { "docid": "2731916", "title": "", "text": "exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). An interrogation is custodial if it occurs while the person “has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. As the Court further explained in California v. Beheler, whether a person is in custody depends on the totality of the circumstances, the ultimate inquiry being “whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam)); see also United States v. Betts, 16 F.3d 748, 761-62 (7th Cir.1994); United States v. Kelly, 991 F.2d 1308, 1312 (7th Cir.1993). Whether Sprosty was in custody during the execution of the search warrant thus turns on the degree to which his freedom of action was curtailed by the police. Our examination of the totality of the circumstances surrounding Sprosty’s interrogation must be informed by the underlying purpose of the Miranda rule, namely, to protect individuals from compelled self-incrimination. See Berkemer v. McCarty, 468 U.S. 420, 433, 437, 104 S.Ct. 3138, 3146-47, 3148-49, 82 L.Ed.2d 317 (1984). We must therefore consider whether Sprosty was subjected to “pressures that sufficiently impair[ed] his free exercise of his privilege against self-incrimination,” id. at 437, 104 S.Ct. at 3149, to require that the procedural protection of Miranda and Edwards be applied here. Id. Although the Supreme Court has never provided an exhaustive list of factors to be considered in determining whether a suspect is in custody within the meaning of Miranda, its reasoning in Berkemer is highly instructive. In Berkemer, the Court held that, because of the “comparatively nonthreatening character” of the ordinary traffic stop, a detained motorist need not receive Miranda warnings before police may ask him" }, { "docid": "2306444", "title": "", "text": "103 S.Ct. 3043 (internal quotation marks omitted). We have always been careful not to “minimize the importance and fundamental nature” of the individual’s right to liberty. Salerno, supra, 481 U.S., at 750, 107 S.Ct. 2095. Id. at 80, 112 S.Ct. 1780. In order to analyze the unusual circumstances of the Japanese-Americans interned during World War II, the court must examine analogous legal circumstances of persons who have been deprived of liberty and taken into the custody of the state. Custody occurs either upon formal arrest or under any other circumstances when the suspect is “otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (custody occurs “as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’ ”) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)). Whether a suspect was in constructive custody depends upon “the totality of the circumstances.” California v. Beheler, 463 U.S. at 1125, 103 S.Ct. 3517. The United States Supreme Court has also explained that “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood the situation.” Berkemer v. McCarty, 468 U.S. at 442, 104 S.Ct. 3138; see also United States v. Lennick, 917 F.2d 974, 977 (7th Cir.1990) (The test is “not whether the defendant was under the subjective belief that his or her movements were restricted, but whether a reasonable person in the defendant’s position would believe that he or she was free to leave.”). An examination of the facts in the instant case illustrates, by analogy, that given the “totality of circumstances,” on June 5, 1945, when the claimant Carole Seno Song was born, the Seno family believed they still were prohibited from returning to their West Coast home, and it was reasonable for them to believe they were under the custody and restricted supervision of the United States authorities to whom they had to" }, { "docid": "21612743", "title": "", "text": "the motion to suppress simultaneously with the evidence on the merits. The court denied the motion, found Mr. Cordoba guilty of driving while intoxicated, and sentenced him to thirty days in prison. After exhausting all avenues of appeal, Mr. Cordoba filed a petition for a writ of habeas corpus. The district court dismissed the petition. From this order, Mr. Cordoba now appeals. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires law enforcement officers to advise a defendant of his right against self-incrimination before initiating a custodial interrogation. Any statement taken during a custodial interrogation in violation of the Miranda rule cannot be admitted at trial to establish the defendant’s guilt. Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 3144-45, 82 L.Ed.2d 317 (1984). A suspect is in custody and entitled to receive the Miranda warning if a reasonable person in the suspect’s position would consider his freedom of action to be curtailed to a “ ‘degree associated with formal arrest.’ ” Id. 468 U.S. at 440, 442, 104 S.Ct. at 3150, 3151 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam)). Mr. Cordoba contends that the trial court’s failure to suppress his statement that he had been drinking and driving violated his Fifth Amendment right against self-incrimination because he made the statement during a custodial interrogation without having béen given the Miranda warning. The district court rejected this argument. We conduct a de novo review of the district court’s ruling. Monk v. Zelez, 901 F.2d 885, 888 (10th Cir.1990). We review for clear error the trial court’s determination that Mr. Cordoba was not in custody for purposes of Miranda when he admitted that he had been drinking and driving. See United States v. Chalan, 812 F.2d 1302, 1307 (10th Cir.1987), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 565 (1988). Mr. Cordoba contends that the district court erred because he admitted to drinking and driving after Officer Melvin had arrested him. This contention is meritless. The record indicates that Mr. Cordoba" }, { "docid": "22860212", "title": "", "text": "Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Thus two requirements must be met before Miranda is applicable; the suspect must be in “custody,” and the questioning must meet the legal definition of “interrogation.” The Supreme Court has instructed that a person has been taken into police custody whenever he “has been deprived of his freedom of action in any significant way.” Id., 384 U.S. at 444, 86 S.Ct. at 1612. The Court has also stated that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curium). The only relevant inquiry is “how a reasonable man in the suspect’s position would have understood his situation.” United States v. Berkemer, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). The Berkemer opinion indicates that a suspect can be placed in police “custody” for purposes of Miranda before he has been “arrested” in the Fourth Amendment sense. Berkemer, 468 U.S. at 441, 104 S.Ct. at 3151. See also United States v. Smith, 3 F.3d at 1097 (7th Cir.1993) (“Berkemer thus underscores that Fifth and Sixth Amendment rights are implicated before a defendant has been arrested.”). The second requirement is that the suspect must have been subjected to “interrogation.” The Court has explained that interrogation includes “any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980) (footnotes omitted). The traditional view, consistent with the district court’s conclusion, is that Miranda warnings are simply not implicated in the context of a valid Terry stop. United States v. Streifel, 781 F.2d 953, 958 (1st Cir.1986) (“As a general rule, Terry stops do not implicate the requirements of Miranda....\"); United States v. McGauley, 786 F.2d 888, 891 (8th Cir.1986) (no Miranda warning" }, { "docid": "22860211", "title": "", "text": "cert. denied, — U.S. —, 112 S.Ct. 610, 116 L.Ed.2d 632 (1991); United States v. Crittendon, 883 F.2d 326, 329 (4th Cir.1989) (handcuffs); United States v. Hemphill, 767 F.2d 922 (6th Cir.) (Table) (Available on WESTLAW at 1985 WL 13433 and on LEXIS) (requiring suspects to lie on ground in handcuffs), cert. denied, 474 U.S. 982, 106 S.Ct. 388, 88 L.Ed.2d 340 (1985); United States v. Kapperman, 764 F.2d 786, 790 n. 4 (11th Cir.1985) (placing suspect in police car in handcuffs); United States v. Taylor, 716 F.2d 701, 709 (9th Cir.1983) (making suspect lie on ground in handcuffs). In short, the officers conducted a reasonable Terry stop. Although bordering on an illegal arrest, the precautionary measures of force employed by the officers were reasonable under the circumstances. The Fourth Amendment does not require that officers unnecessarily risk their lives when encountering a suspect whom they reasonably believe to be armed and dangerous. 2. Miranda and Its Interplay with Terry Miranda requires that procedural safeguards be administered to a criminal suspect prior to “custodial interrogation.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Thus two requirements must be met before Miranda is applicable; the suspect must be in “custody,” and the questioning must meet the legal definition of “interrogation.” The Supreme Court has instructed that a person has been taken into police custody whenever he “has been deprived of his freedom of action in any significant way.” Id., 384 U.S. at 444, 86 S.Ct. at 1612. The Court has also stated that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curium). The only relevant inquiry is “how a reasonable man in the suspect’s position would have understood his situation.” United States v. Berkemer, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). The Berkemer opinion indicates that a suspect can be placed in police “custody” for purposes of" }, { "docid": "3887809", "title": "", "text": "disappearance of Canadian money and asked if they could look into his wallet. Carter complied with this request, and the agents discovered $63.00 in cash and a bearer check. These were the marked items that the inspectors had placed in the mail trays. After explaining this to Carter, the agents obtained from him various incriminating statements. The inspectors then warned Carter of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Carter acknowledged that he understood those rights and signed a waiver form; he then wrote out a handwritten statement admitting his guilt. Carter was not arrested, and was allowed to go home after the interview. Carter moved the district court to suppress his statements and the bait money as having been improperly obtained before he was given Miranda warnings. The district court granted the motion and suppressed the statements and the physical evidence. The court found that the interrogation occurred in a custodial setting and that Miranda warnings therefore should have been given. The court further found that the totality of the circumstances indicated that defendant’s consent to the search of his wallet was not freely and voluntarily given inasmuch as it occurred in a coercive atmosphere, no Miranda warnings were given, the inspectors made a misrepresentation to Carter to induce his consent, and Carter was not informed that he was not required to produce his wallet. The United States appeals from the district court’s orders. We agree with Carter’s contention that Miranda warnings should have been given earlier in the questioning than they were. The warnings must be given before interrogation begins when a suspect is taken into custody or otherwise significantly deprived of his freedom of action. Miranda, 384 U.S. at 444, 467, 86 S.Ct. at 1624; Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 3144-45, 82 L.Ed.2d 317 (1984). In determining whether a suspect is “in custody,” the “relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151. The test is not" }, { "docid": "13124612", "title": "", "text": "the prosecution demonstrates the use of procedural safeguards effective to secure the Fifth Amendment privilege against self-incrimination. See 384 U.S. at 444, 86 S.Ct. 1602. Prior to questioning, the person being interrogated must be warned of his “Miranda rights,” including his right to remain silent. See id. Miranda rights need only be given to a suspect at the moment that suspect is “in custody” and the questioning meets the legal definition of “interrogation.” United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir.1993). As the government concedes that Mr. Chee was “interrogated” by Agent Larson and was never read his Miranda rights, Aplee. Br. at 16, we need only determine whether Mr. Chee was “in custody.” An individual is “in custody” of the authorities under Miranda if he is “deprived of his freedom of action in any significant way,” 384 U.S. at 444, 86 S.Ct. 1602, or his “freedom of action is curtailed to a ‘degree associated with formal arrest.’ ” Perdue, 8 F.3d at 1463 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam)). We therefore must determine whether “a reasonable [person] in the suspect’s position would have understood [the] situation ... as the functional equivalent of formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). This is a fact-intensive inquiry focusing on the totality of the circumstances. United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir.1993). Helpful to our analysis is whether the suspect is made aware that he or she is free to refrain from answering questions or to end the interview at will and the nature of the questioning, including whether the questioning is prolonged and accusatory. Id. In addition, we analyze whether the environment was “police dominated.” Id. Indications of whether the police are in full control may include whether the suspect was separated from his family and isolated in a nonpublic questioning room, whether there was the threatening presence of several officers, whether there was any display of weapons or physical contact with the suspect, and whether the" }, { "docid": "8658510", "title": "", "text": "she was not under arrest and was free to leave; Ms. Coleman consented; and the encounter took place at times in a public area. The evidence flowing from this encounter was properly admitted in the absence of Miranda warnings. B. As no Miranda warnings were given during Ms. Griffin’s encounter with the second police officer, we must decide if Mr. Griffin was in custody. Miranda warnings are required when the defendant is in custody and subject to interrogation. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. In order to determine whether or not a person is in custody for Miranda purposes, a court must examine all relevant facts, the only relevant inquiry being how a reasonable person in the suspect’s position would have understood his situation. Berkemer, 468 U.S. at 442, 104 S.Ct. at 1351; Chalan, 812 F.2d at 1306. If, from an objective viewpoint, someone in Ms. Griffin’s position would reasonably believe her freedom of action had been curtailed to a “degree associated with a formal arrest,” then she would be held in custody during the interrogation. Beheler, 463 U.S. at 1125, 103 S.Ct. at 3520; Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150. The determination of custody, from an examination of the totality of the circumstances, is necessarily fact intensive. In the past, we have avoided hard line rules to govern this analysis, and our opinion today should not be interpreted as an exhaustive pronouncement. Several factors, however, have been useful in testing the atmosphere of custody. First, the extent to which the suspect is made aware that he or she is free to refrain from answering questions or to end the interview at will often defines the custodial setting. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam); Chalan, 812 F.2d at 1305 (no Miranda required when suspect came to the interview voluntarily with his mother, was free to leave at any time, and interviewing officers told him he did not have to answer any questions and he was not a suspect in the case); United" } ]

[ { "docid": "10176954", "title": "", "text": "and Mrs. Lockwood who simply assumed a $100,000.00 debt against it. These ladies were employees of the agency. CONCLUSIONS OF LAW 11 U.S.C. § 727(a)(2) provides that the debtor may not be granted a discharge if: (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title [11 USCS §§ 1 et seq.], has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition; or ... The trustee [creditor] has the ultimate burden of proving facts essential to an objection to discharge by a fair preponderance of evidence. Bankruptcy Rules of Procedure, Rule 4005; Matter of Ramos, 8 B.R. 490 (Bkrtcy.W.D.Wis.1981); In re Martin, 698 F.2d 883 (7th Cir.1983); Matter of Reed, 700 F.2d 986 (5th Cir.1983); 4 Collier on Bankruptcy ¶ 727.14 (15th Ed. 1982). However, once a creditor introduces proof that the debtor committed any of the prohibited acts, the debtor has the burden of coming forward with evidence to explain his conduct. Matter of Freedman, 693 F.2d 50 (8th Cir.1982); In re Bateman, 646 F.2d 1220 (8th Cir.1981); Rules of Bankruptcy Procedure, Rule 4005, Advisory Committee Note; In re Martin, 698 F.2d 883 (7th Cir.1983); Allis v. Jones, 403 F.2d 707 (8th Cir.1968). The rule is the same under state law. Leonhard v. Flood, 68 Ark. 162, 56 S.W. 781 (1900). Thus, a trier of fact may properly draw a reasonable inference of fraud from an unexplained suspicious transfer. See, In re Renner, 45 B.R. 414 (Bkrtcy.D.Md.1984); In re Martin, 698 F.2d 883 (7th Cir.1983); Matter of Kauffman, 675 F.2d 127 (7th Cir.1981). As the Court states in In re Martin, 698 F.2d at 888: It is clearly unsatisfactory to grant the debtor a discharge in a case such as this, where the debtor “stonewalls” the creditor and refuses to credibly explain to the court his puzzling and suspect transactions. The intent necessary to deny discharge must be" } ]

[ { "docid": "15907655", "title": "", "text": "and which is not contested, the transfer itself was made with fraudulent intent, hence, the only issue for this Court to determine is whether the Debt- or, with the intent to hinder, delay, or defraud a creditor, concealed the loan during the year prior to the filing of the Chapter 13 petition. Rosen, 996 F.2d at 1533. As a Debtor will usually not admit to intending to act in a fraudulent way, fraudulent intent may be inferred from the facts and circumstances of the case. Silverstein, 151 B.R. at 660. For example, intent to defraud may be inferred when the following “badges of fraud” are present: (1) the lack or inadequacy of consideration; (2) a family, friendship or close associate relationship between the parties; (3) the retention of position, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence of cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suit by creditors; and (6) the general chronology of the events and transactions under inquiry. Kaiser, 722 F.2d at 1582-83; Silverstein, 151 B.R. at 660-61. Many of these “badges” apply more appropriately to transfers. The burden of proof must be borne by a plaintiff seeking to sustain an objection to discharge. In re Bodenstein, 168 B.R. 23, 28 (Bankr.E.D.N.Y.1994). Once sufficient evidence is presented by the plaintiff to satisfy the burden of going forward with the evidence, the burden thereafter shifts to the debtor to provide evidence to rebut the plaintiffs prima facie case. Id. The plaintiff, however, always bears the ultimate burden of proving, by a preponderance of the evidence, the essential elements of an alleged objection to discharge. Id. Applying Section 727(a)(2)(A), relevant ease law and the Kaiser standards, 722 F.2d at 1583, the Court finds that Painewebber has failed to state a prima facie case of intentional concealment. At the time of the alleged concealment, i.e. the 1992 deposition, Debtor" }, { "docid": "12861452", "title": "", "text": "Bankruptcy Code, the objector need only prove that one, not all of the section 727(a) exceptions to discharge exists. 11 U.S.C. § 727; In re Moss, 266 B.R. 408, 414 (8th Cir. BAP 2001). The denial of a discharge under section 727 is a harsh sanction and therefore the provisions are strictly construed in favor of the debtor. In re Sendecky, 283 B.R. 760, 763 (8th Cir. BAP 2002)(citing In re Korte v. United States of America (In re Korte), 262 B.R. 464, 469 (8th Cir. BAP 2001)). Objecting creditors must prove each of the elements of the section by a preponderance of the evidence. Id. In order to merit denial of a discharge, the misrepresentation or omission must be material, but the threshold to materiality is low and materiality turns on whether there is a relationship to the assets of the estate, not monetary value. Cepelak v. Sears (In re Sears), 246 B.R. 341, 347 (8th Cir. BAP 2000)(citing In re Olson, 916 F.2d 481, 484 (8th Cir.1990)). DENIAL OF DISCHARGE: 11 U.S.C. § 727(a)(2)(A) The Daniels argue that Boyd’s discharge should be denied due to violations of section 727(a)(2)(A). Under the provisions of this section, the court shall grant the debtor a discharge unless “(2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate has transferred, removed, destroyed, mutilated, or concealed, ... —(A) property of the debtor, within one year before the date of filing the petition.” 11 U.S.C. § 727(a)(2)(A). Specifically, the Daniels allege that Boyd did not list the following property, intending to conceal his interest from creditors: a 2003 Dodge Ram Pick-up, a 2003 GMC Sierra, a 2004 Dodge Ram, a 2004 Terry Trailer, and various tools used in Boyd’s business. Boyd argues that the property at issue, other than the tools, belongs to his wife, Norma Boyd, and belonged to her at the time the petition and amendments were filed. Boyd’s claim that he did not have an obligation to disclose any interest in the vehicles because he did not have an ownership interest is simply" }, { "docid": "16946968", "title": "", "text": "of a debtor’s discharge is a harsh remedy and the provisions set forth in § 727(a) are precisely drawn so as to encompass only those debtors who have not been honest and forthcoming about their affairs. Buckeye Retirement Properties v. Tauber (In re Tauber), 349 B.R. 540, 545 (Bankr.N.D.Ind.2006) [“The denial of a debtor’s discharge is akin to financial capital punishment. It is reserved for the most egregious misconduct by a debtor.”]. Thus, in order to accomplish that limited purpose, the provisions of § 727(a) are to be construed liberally in favor of granting debtors the fresh start contemplated by the Bankruptcy Code and construed strictly against parties seeking to deny the granting of a debtor’s discharge. In re Ichinose, 946 F.2d 1169, 1172 (5th Cir.1991); Melancon v. Jones (In re Jones), 292 B.R. 555, 559 (Bankr.E.D.Tex.2003). As the Plaintiff seeking such relief, the Plaintiff bears the burden of proving that the Debt- or is not entitled to a discharge under § 727. The standard of proof for its claim is a preponderance of the evidence. See, e.g., Everspring Enter., Inc. v. Wang (In re Wang), 247 B.R. 211, 213-14 (Bankr.E.D.Tex.2000) (“The standard of proof for allegations ... under § 727, is by a preponderance of the evidence.”) (citing Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) and Mozeika v. Townsley (In re Townsley), 195 B.R. 54 (Bankr.E.D.Tex.1996)). Section 727(a)(2)(A). The first statutory limitation under which the complaint seeks to deny a discharge to Dr. Guillet is § 727(a)(2)(A). This section provides: “The court shall grant the debtor a discharge unless— the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate ... has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed property of the debtor, within one year before the date of the filing of the petition » In order to prevail under § 727(a)(2)(A), there must be evidence of an actual intent to hinder, delay, or defraud creditors — a constructive intent is insufficient. Pavy v. Chastant (In" }, { "docid": "4422930", "title": "", "text": "F.2d 52 (4th Cir.1985); First Texas Sav. Assoc., Inc. v. Reed (In re Reed), 700 F.2d 986 (5th Cir.1983). But it does not appear to have been addressed by the Ninth Circuit at least since the adoption of the Bankruptcy Code. There is, however, substantial Ninth Circuit case law addressing the elements, evidentiary standards, and burden of proof for denial of discharge under § 727(a)(2)(A). “Denial of discharge is a harsh result.” Bernard v. Sheaffer (In re Bernard), 96 F.3d 1279, 1283 (9th Cir.1996). “In keeping with the ‘fresh start’ purposes behind the Bankruptcy Code, courts should construe § 727 liberally in favor of debtors and strictly against parties objecting to discharge.” Id. at 1281, citing Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751, 754 (9th Cir.1985). Section 727(a)(2)(A) provides that a debtor may be denied a discharge if “the debtor, with intent to hinder, delay, or defraud a creditor, ... has transferred ... property of the debtor, within one year before the date of the filing of the petition; ...” Here is it undisputed that the Debtors transferred their Krispy Kream stock within one year of the petition, so the only issue is whether such transfer was made with the requisite “intent to hinder, delay or defraud a creditor.” To a deny a discharge under § 727(a)(2)(A), the intent must be actual intent, as “[constructive fraudulent intent cannot be the basis for denial of a discharge.” First Beverly Bank v. Adeeb (In re Adeeb), 787 F.2d 1339, 1343 (9th Cir.1986); Devers, 759 F.2d at 753. But that requisite intent need only be shown by a preponderance of the evidence, not the heightened standard the common law often requires for a showing of fraud. Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). And an intent to defraud need not be shown, as “[ijntent to hinder or delay is sufficient.” Bernard, 96 F.3d at 1281. That intent, though it must be actual, may be inferred “from the circumstances surrounding the transaction.” Emmett Valley Assocs. v. Woodfield (In re Woodfield), 978 F.2d" }, { "docid": "16946969", "title": "", "text": "evidence. See, e.g., Everspring Enter., Inc. v. Wang (In re Wang), 247 B.R. 211, 213-14 (Bankr.E.D.Tex.2000) (“The standard of proof for allegations ... under § 727, is by a preponderance of the evidence.”) (citing Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) and Mozeika v. Townsley (In re Townsley), 195 B.R. 54 (Bankr.E.D.Tex.1996)). Section 727(a)(2)(A). The first statutory limitation under which the complaint seeks to deny a discharge to Dr. Guillet is § 727(a)(2)(A). This section provides: “The court shall grant the debtor a discharge unless— the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate ... has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed property of the debtor, within one year before the date of the filing of the petition » In order to prevail under § 727(a)(2)(A), there must be evidence of an actual intent to hinder, delay, or defraud creditors — a constructive intent is insufficient. Pavy v. Chastant (In re Chastant), 873 F.2d 89, 91 (5th Cir.1989); Lee, 309 B.R. at 481. However, “a court may infer such actual intent from the circumstances of the debt- or’s conduct.” NCNB Texas Nat’l Bank v. Bowyer (In re Bowyer), 916 F.2d 1056, 1059 (5th Cir.1990) rev’d, 932 F.2d 1100 (5th Cir.1991) (citing Smiley v. First Nat’l Bank of Belleville (In re Smiley), 864 F.2d 562, 565 (7th Cir.1989)). Despite the requirement of proof of actual intent, such actual intent may be inferred by looking to several factors: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit, or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of the pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (6) the general chronology" }, { "docid": "19750767", "title": "", "text": "which resulted in taxable income in the form of a capital gain of $178,177.00. (Pl.’s Ex. 4.) The Debtors also reported interest income of $2,362.00 as part of the transaction on Schedule B of the joint tax return. (Pl.’s Ex. 4.) Another transaction the Debtors failed to disclose was the distribution from an IRA in 2006 in the sum of $12,148.00. This distribution was also included as income in the Debtors’ joint 2006 federal tax return. (Pl.’s Ex. 4, 2006 tax return.) A third transaction the Debtors failed to disclose occurred on November 15, 2005, when the Debtor redeemed his 83 shares of stock in Spa City Steaks, Inc., for the sum of $59,970.00. (Pl.’s Ex. 12.) He received an initial payment of $50,000.00 on November 14, 2005, and a note for the remaining $9,970.00. On March 1, 2006, he received checks for $9,970.00 and $186.95, representing payment on the remaining principal and interest owed on the note. (PL’s Ex. 13.) The transaction resulted in capital gain income of $14,055.00 as reported on the Debtors’ 2005 joint tax return. Applicable law related to section 727(a)(b) To prevail in a complaint brought pursuant to 11 U.S.C. § 727(a)(4)(A), the plaintiff must establish that (1) the debtor made the statement under oath; (2) the statement was false; (3) the statement was made with fraudulent intent; (4) the debt- or knew the statement was false; and (5) the statement related materially to the debtor’s bankruptcy. Jacoway v. Mathis (In re Mathis), 258 B.R. 726, 735 (Bankr.W.D.Ark.2000)(citing Oldendorf v. Buckman, 173 B.R. 99, 105 (E.D.La.1994)(citing In re Beaubouef, 966 F.2d 174, 178 (5th Cir.1992); In re Smith, 161 B.R. 989, 992 (Bankr.E.D.Ark.1993))). The plaintiff has the burden of proving facts essential to an objection to discharge by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). However, once a creditor has introduced evidence that the debtor committed any of the prohibited acts, the debtor has the burden of coming forward with the evidence to explain his conduct. Ramsay v. Jones (In re Jones), .175" }, { "docid": "17702550", "title": "", "text": "to direct evidence and therefore may be gleaned from the circumstances surrounding the alleged fraudulent transaction. The Second Circuit has adopted certain “badges of fraud” or presumptions as circumstantial evidence of actual intent. See Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582 (2d Cir.1983). These may include: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pen-dency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. Kaiser, 722 F.2d at 1582. Other relevant recognized indicia of fraud are: (i) a transfer for no consideration when the transfer- or and the transferee know of the claims of creditors and know that creditors cannot be paid and (ii) the existence of an unconscionable discrepancy between the value of the property transferred and the consideration received therefor. Breeden v. Bennett (In re The Bennett Funding Group, Inc.), 220 B.R. 743, 755 (Bankr.N.D.N.Y.1997) (citing 5 L. King, Collier on BanKruptcy, ¶ 548.04[2][b] at 548-24 (15th ed. rev.1997)). Under DCL section 276, actual intent to defraud must be proven by clear and convincing evidence. See United States v. McCombs, 30 F.3d 310 (2d Cir.1994). “It is the intent of the transferor and not that of the transferee that is dis-positive.” Stratton Oakmont, 234 B.R. 293, 318 (citing HBE Leasing Corporation v. Frank, 61 F.3d 1054, 1059 n. 5 (2d Cir.1995)) (to prove actual fraud under section 276, a creditor must show intent to defraud on the part of the transferor); Crowthers McCall Pattern, Inc. v. Lewis (In re Crowthers McCall Pattern, Inc.), 129 B.R. 992, 999 (S.D.N.Y.1991): Brody v. Pecoraro, 250 N.Y. 56, 61-62, 164 N.E. 741 (1928) (Cardozo, J.); Leone v. Sabbatino, 235 A.D.2d 460," }, { "docid": "1310089", "title": "", "text": "may be deduced from the facts and circumstances of a case. In re Saphire, 139 F.2d 34, 35 (2d Cir.1943); In re Devers, 759 F.2d 751, 754 (9th Cir.1985). To infer actual intent to defraud, the Second Circuit has looked for “badges of fraud” such as: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transaction or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582-83 (2nd Cir.1983). “The fact that property has been gratuitously transferred raises a presumption that such transfer was accompanied by the actual fraudulent intent necessary to bar a discharge under 727(a)(2). 4 Collier on Bankruptcy, See. 727.02 at 727-16 (15th Ed.1988). “Concealment has generally been defined as the transfer of legal title to property to a third party with the retention of a secret interest by the Bankrupt. In effect, this would be creating a trust in the Bankrupt.” Ohio Citizens Trust Co. v. Smith (In re Smith), 11 B.R. 20, 22 (Bankr.N.D.Ohio 1981); see also In re Vecchione 407 F.Supp. 609 (E.D.N.Y.1976). Therefore, record title is not determinative of equitable ownership. In re Berman 100 B.R. 640 (Bankr.E.D.N.Y.1989) (where equitable ownership in the Debtor was determined to exist after the Debtor transferred his interest in his home to his wife but continued to use the residence). When a debtor makes all mortgage, insurance, and maintenance payments on and lives in property owned by another, he may be found to have fraudulently concealed his interest by maintaining the property in the other’s name. In re Martin 698 F.2d 883 (7th Cir.1983). Although the transfer of Debtor’s interest in his" }, { "docid": "18293913", "title": "", "text": "hinder, delay, or defraud a creditor is all that is needed to deny discharge under § 727(a)(2)(A). In contrast, for a transfer to be avoided under § 548(a)(1)(A) and UFTA, there must be proof of actual intent to hinder, delay, or defraud. In practice, however, there may be little difference between “intent to hinder, delay, or defraud” and “actual intent to hinder, delay, or defraud.” In § 727(a)(2) cases, the Ninth Circuit has used “intent” and “actual intent” interchangeably. Emmett Valley Assocs. v. Woodfield (In re Woodfield), 978 F.2d 516, 518 (9th Cir. 1992); Adeeb, 787 F.2d at 1342. Whether a debtor harbors intent to hinder, or delay, or defraud a creditor is a question of fact reviewed for clear error. Woodfield, 978 F.2d at 518; Searles, 317 B.R. at 379; cf. Bammer, 131 F.3d at 791 (distinguishing among standards). Intent may be inferred from surrounding circumstances. Woodfield, 978 F.2d at 518; Adeeb, 787 F.2d at 1342-43. The surrounding circumstances include the various “badges of fraud” that constitute circumstantial evidence of intent. Woodfield, 978 F.2d at 518. A course of conduct may also be probative of the question of intent. Adeeb, 787 F.2d at 1343; Devers, 759 F.2d at 753-54; Searles, 317 B.R. at 380. The burden of proof on an objection to discharge under § 727(a)(2) is preponderance of evidence. See Grogan v. Garner, 498 U.S. 279, 289, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Lansdowne v. Cox (In re Cox), 41 F.3d 1294, 1297 (9th Cir. 1994); Searles, 317 B.R. at 376; 6 Collier on Bankruptcy ¶ 522.08[4] (Henry J. Sommer & Alan N. Resnick eds. 15th ed. rev. 2006) (“Collier 15th ed.”). As applied to Beverly’s MSA transfer of his interest in $1 million of nonexempt property to his former spouse, the evidence of Beverly’s intent to hinder, delay, or defraud the Outland creditors is so overwhelming for the reasons we previously have described with respect to UFTA that the contrary conclusion was clear error. B The avoidance of a fraudulent transfer under § 548 or UFTA does not necessarily compel the denial of discharge even though" }, { "docid": "19750768", "title": "", "text": "2005 joint tax return. Applicable law related to section 727(a)(b) To prevail in a complaint brought pursuant to 11 U.S.C. § 727(a)(4)(A), the plaintiff must establish that (1) the debtor made the statement under oath; (2) the statement was false; (3) the statement was made with fraudulent intent; (4) the debt- or knew the statement was false; and (5) the statement related materially to the debtor’s bankruptcy. Jacoway v. Mathis (In re Mathis), 258 B.R. 726, 735 (Bankr.W.D.Ark.2000)(citing Oldendorf v. Buckman, 173 B.R. 99, 105 (E.D.La.1994)(citing In re Beaubouef, 966 F.2d 174, 178 (5th Cir.1992); In re Smith, 161 B.R. 989, 992 (Bankr.E.D.Ark.1993))). The plaintiff has the burden of proving facts essential to an objection to discharge by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). However, once a creditor has introduced evidence that the debtor committed any of the prohibited acts, the debtor has the burden of coming forward with the evidence to explain his conduct. Ramsay v. Jones (In re Jones), .175 B.R. 994, 997 (Bankr.E.D.Ark.1994)(citing Jolles v. Freedman (In re Freedman), 693 F.2d 50, 51 (8th Cir.1982)). The Bankruptcy Code requires debtors to fully complete the schedules and statements of affairs under oath. Korte v. Internal Revenue Service (In re Korte), 262 B.R. 464, 474 (8th Cir. BAP 2001); Cepelak v. Sears (In re Sears), 246 B.R. 341, 347 (8th Cir. BAP 2000)(citing 28 U.S.C. § 1746). Statements made with reckless regard for the truth are regarded as intentionally false. In re Korte, 262 B.R. at 474 (citations omitted); Bold City VII, Ltd. v. Radcliffe (In re Radcliffe), 141 B.R. 1015, 1021 (Bankr.E.D.Ark.1992). Omissions from the schedules qualify as a false oath if they are made knowingly and with fraudulent intent. In re Sears, 246 B.R. at 347(citing Mertz v. Rott, 955 F.2d 596, 598 (8th Cir.1992)); In re Baldridge, 256 B.R. 284, 289 (Bankr. E.D.Ark.2000); Ray v. Graham (In re Graham), 111 B.R. 801, 806 (Bankr. E.D.Ark.1990). A debtor rarely admits fraudulent intent; therefore, the objecting party must rely on a combination of circumstantial evidence" }, { "docid": "1310088", "title": "", "text": "of the petition.” In order to sustain an objection to discharge under 727(a)(2), the plaintiff 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, or defraud a creditor or an officer of the estate charged with custody of property under the Bankruptcy Code; (3) that the act was that of the Debtor or his duly authorized agent; (4) that the act consisted of transferring, removing, destroying or concealing any of the Debtor’s property, or permitting any of these acts to be done. 4 Collier on Bankruptcy, Sec. 727.02 at 727-11-12 (15th Ed. 1988). Ascertaining whether a debtor acted with fraudulent intent is difficult because, ordinarily, the Debtor is the only person able to testify directly regarding his intent and a debtor is unlikely to state that his intent was fraudulent. Job v. Calder (In re Calder), 907 F.2d 953 (10th Cir.1990). Therefore, fraudulent intent is rarely susceptible to direct proof, but may be deduced from the facts and circumstances of a case. In re Saphire, 139 F.2d 34, 35 (2d Cir.1943); In re Devers, 759 F.2d 751, 754 (9th Cir.1985). To infer actual intent to defraud, the Second Circuit has looked for “badges of fraud” such as: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transaction or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582-83 (2nd Cir.1983). “The fact that property has been gratuitously transferred raises a presumption that such transfer was accompanied by the actual fraudulent intent" }, { "docid": "16127586", "title": "", "text": "deny a discharge. Bank of Pa. v. Adlman (In re Adlman), 541 F.2d 999, 1003 (2d Cir.1976) (emphasis added). Direct proof of fraudulent intent is often unavailable. In re Boyer, 328 Fed.Appx. 711, 715 (2d Cir.2009). As a result, courts have developed badges of fraud, which allow for circumstantial proof to demonstrate the necessary intent. In the Second Circuit the badges of fraud include: (1) the lack or inadequacy of consideration; (2) the family, friendship or other close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. In re Kaiser, 722 F.2d 1574, 1582-83 (2d Cir.1983). As with “other aspects of the evaluation of evidence, determinations concerning fraudulent intent are questions of fact that depend largely upon an assessment of the credibility and demeanor of the debt or.” Credit Corp. I v. Boyer (In re Boyer), 367 B.R. 34, 45 (Bankr.D.Conn.2007) (internal quotation marks and citations omitted). Transfer of Debtor’s Interest in 43 Carl Lane The Trust’s first theory under § 727(a)(2)(A) is that the Transfer was intended to hinder, delay, or defraud creditors. It is undisputed Mr. Carl, while insolvent, transferred his home from himself, as sole owner, to himself and his wife. (Joint Stip. ¶ 9.) According to the Debtor’s testimony, he knew that prior to the Transfer, he had substantial equity in his home. (Trial Tr. vol. 1, 172.) This equity was transferred to his wife for no consideration. (Joint Stip. ¶ 9.) The only element of § 727(a)(2)(A) disputed by Mr. Carl is the fourth, namely, that he did not have the requisite intent needed to deny him a discharge. Transactions between husband and wife must be closely scrutinized to assure that" }, { "docid": "16127585", "title": "", "text": "Cir.2006). II. Denial of a Discharge under § 727(a)(2)(A) Section 727(a)(2)(A) provides that “[t]he court shall grant the debtor a discharge, unless the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred, removed, destroyed, mutilated, or concealed ... property of the debtor, within one year before the date of the filing of the petition.” 11 U.S.C. § 727(a)(2)(A). In order to prevail under § 727(a)(2)(A) the Plaintiff must prove: (1) that the Debtor; (2) transferred or concealed property; (3) that the act complained of was done to property owned by the debtor; (4) with actual intent to hinder, delay or defraud a creditor; and (5) that the act complained of was done within one year of the Debtor filing their bankruptcy petition. See Minsky v. Silverstein (In re Silverstein), 151 B.R. 657, 660 (Bankr.E.D.N.Y.1993) (citing 4 Collier on Bankruptcy, Sec. 727.02 at 727-11-12 (15th Ed. 1998)). To establish a § 727(a)(2) cause of action, the plaintiff must demonstrate an actual intent to hinder, delay, or defraud; constructive intent is insufficient to deny a discharge. Bank of Pa. v. Adlman (In re Adlman), 541 F.2d 999, 1003 (2d Cir.1976) (emphasis added). Direct proof of fraudulent intent is often unavailable. In re Boyer, 328 Fed.Appx. 711, 715 (2d Cir.2009). As a result, courts have developed badges of fraud, which allow for circumstantial proof to demonstrate the necessary intent. In the Second Circuit the badges of fraud include: (1) the lack or inadequacy of consideration; (2) the family, friendship or other close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. In re Kaiser, 722 F.2d 1574, 1582-83 (2d Cir.1983). As with “other aspects of" }, { "docid": "5573179", "title": "", "text": "First Beverly Bank v. Adeeb (In re Adeeb), 787 F.2d 1339, 1343 (9th Cir.1986)). Courts will find the requisite intent “to hinder, delay, or defraud” a creditor from either: (1) direct or explicit proof, a rarity, or (2) a preponderance of circumstantial evidence of a debtor’s illicit intent, the so-called “badges of fraud” (the “badges”). In re Boyer, 328 Fed.Appx. at 715 & n. 2 (internal quotation marks omitted) (citing Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582-83 (2d Cir.1983)); see also Robertson v. Dennis (In re Dennis), 330 F.3d 696, 702 (5th Cir.2003) (describing the six badges that appear in In re Kaiser, 722 F.2d at 1582-83, as those “that tend to prove actual intent to defraud”). Within the context of § 727(a)(2)(A), the customary badges number six: “(1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of the pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pen-dency or threat of suits by creditors; (6) the general chronology of the events and transactions under inquiry”; (7) “[t]he transfer of property of a debtor to his spouse while insolvent, while retaining the use and enjoyment of the property”; and (8) “[t]he shifting of assets by the debtor to a corporation wholly controlled by him.” In re Kaiser, 722 F.2d at 1582-83 (internal citations omitted). Since Kaiser, the courts have identified two other scenarios that tend to show a fraudulent intent in analyzing § 727(a)(2)(A): (9) “an[y] attempt by the debtor to keep the transfer a secret,” Warchol v. Barry (In re Barry), 451 B.R. 654, 660 (B.A.P. 1st Cir.2011); Groman v. Watman (In re Watman), 301 F.3d 3, 8 (1st Cir.2002), and (10) a so-called “diversion of asset theory” that is applicable “where a debtor attempts to frustrate creditors by" }, { "docid": "19750769", "title": "", "text": "B.R. 994, 997 (Bankr.E.D.Ark.1994)(citing Jolles v. Freedman (In re Freedman), 693 F.2d 50, 51 (8th Cir.1982)). The Bankruptcy Code requires debtors to fully complete the schedules and statements of affairs under oath. Korte v. Internal Revenue Service (In re Korte), 262 B.R. 464, 474 (8th Cir. BAP 2001); Cepelak v. Sears (In re Sears), 246 B.R. 341, 347 (8th Cir. BAP 2000)(citing 28 U.S.C. § 1746). Statements made with reckless regard for the truth are regarded as intentionally false. In re Korte, 262 B.R. at 474 (citations omitted); Bold City VII, Ltd. v. Radcliffe (In re Radcliffe), 141 B.R. 1015, 1021 (Bankr.E.D.Ark.1992). Omissions from the schedules qualify as a false oath if they are made knowingly and with fraudulent intent. In re Sears, 246 B.R. at 347(citing Mertz v. Rott, 955 F.2d 596, 598 (8th Cir.1992)); In re Baldridge, 256 B.R. 284, 289 (Bankr. E.D.Ark.2000); Ray v. Graham (In re Graham), 111 B.R. 801, 806 (Bankr. E.D.Ark.1990). A debtor rarely admits fraudulent intent; therefore, the objecting party must rely on a combination of circumstantial evidence that suggests the necessary intent. In re Jones, 175 B.R. 994, 1002 (Bankr.E.D.Ark.1994)(citing McCormick v. Security State Bank, 822 F.2d 806, 808 (8th Cir.1987.)) The debtor cannot then overcome that inference with an unsupported assertion of honest intent. In re Mathis, 258 B.R. at 733 (citing In re Van Home, 823 F.2d 1285, 1287 (8th Cir.1987)). The statement or omission is material if it bears a relationship to the debt- or’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of the debtor’s property. Mertz v.Rott, 955 F.2d at 598; In re Sears, 246 B.R. at 347. The Debtor does not deny that he failed to list the three transactions mentioned above and that, therefore, the answers on the Statement of Financial Affairs were incorrect. Mrs. Cooper also admitted the two stock sales were not listed on the Statement of Financial Affairs, but she was never questioned about the redemption of the IRA. The Debtor defended the omission of these transactions as an oversight that was excusable" }, { "docid": "5573178", "title": "", "text": "of his alter ego Corporations’ property, the Debtor did not turn over records that remain, as of February 2011, the only still existent records of the Corporations’ business activities. He did eventually surrender the boxes themselves, but as neither he nor Mr. Portnoy identified a single supporting document amidst a disorganized panoply of boxes, Tr. 11/16/10 at 82:6-10, the property’s location and disposition remains impermissibly unknown. Pursuant to prevailing case law, the Debt- or attempted to prevent discovery of his losses and profits as an individual before and after filing, and these acts by themselves provide the basis for finding concealment of property under § 727(a)(2)(A). 3. “[Ijntent to hinder, delay, or defraud”: § 727(a)(2)(A) The final element — a debtor’s actual, rather than constructive, intent— focuses on a debtor’s wrongful conduct towards a creditor, regardless of actual effect on one, some, or all. 11 U.S.C. § 727(a)(2)(A); Cadle Co. v. Marra (In re Marra), 308 B.R. 628, 630 (D.Conn.2004); Locke v. Schafer (In re Schafer), 294 B.R. 126, 131 (N.D.Cal.2003) (relying in part on First Beverly Bank v. Adeeb (In re Adeeb), 787 F.2d 1339, 1343 (9th Cir.1986)). Courts will find the requisite intent “to hinder, delay, or defraud” a creditor from either: (1) direct or explicit proof, a rarity, or (2) a preponderance of circumstantial evidence of a debtor’s illicit intent, the so-called “badges of fraud” (the “badges”). In re Boyer, 328 Fed.Appx. at 715 & n. 2 (internal quotation marks omitted) (citing Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582-83 (2d Cir.1983)); see also Robertson v. Dennis (In re Dennis), 330 F.3d 696, 702 (5th Cir.2003) (describing the six badges that appear in In re Kaiser, 722 F.2d at 1582-83, as those “that tend to prove actual intent to defraud”). Within the context of § 727(a)(2)(A), the customary badges number six: “(1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before" }, { "docid": "13676029", "title": "", "text": "difficulty of proving actual intent to hinder, delay or defraud, courts have identified several “badges of fraud” or wrongful intent which, if present in the circumstances surrounding the transaction, may establish the requisite actual intent. Cohen, 142 B.R. at 728; Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582 (2d. Cir.1983). The general facts surrounding a case are key instruments used to gauge intent because an individual’s intent is seldom admitted to and is difficult to prove. Cohen, 142 B.R. at 728; Carter, 236 B.R. at 182 (“Actual intent may be inferred from the totality of the circumstances.”); Pavy v. Chastant (In re Chastant), 873 F.2d 89, 91 (5th Cir.1989); Bowyer, 916 F.2d at 1058-59 (court examined the circumstances surrounding the transfers for extrinsic evidence of intent to hinder or delay). Certain badges of fraud suggest that a transaction’s purpose is to hinder, delay or defraud creditors unless some other convincing explanation appears. Woodfield, 978 F.2d at 518. Some of the factors evidencing actual intent to defraud under section § 727(a)(2)(A) include: lack or inadequacy of consideration; the family, friendship or close associate relationship between the parties; the retention of possession, benefit or use of the property in question; the financial condition of the party sought to be charged both before and after the transaction in question; the existence or cumulative effect of the pattern or series of transactions or course of conduct after incurring of debt, onset of financial difficulties or pendency or threat of suits by creditors; and the general chronology of the events and transaction under inquiry. See Carter, 236 B.R. at 182; see also Chastant, 873 F.2d at 91; 6 Collier on Bankruptcy, § 727.02[3](b) (15th ed. rev.2000); Kaiser, 722 F.2d at 1582-83; Woodfield, 978 F.2d at 518 (transfer so completely depleted the debtor’s assets that the creditor has been hindered or delayed in recovering any part of the judgment is indicative of intent). In addition to these badges of fraud, other factors indicative of an actual intent to hinder or delay a creditor are: whether the transaction is conducted at arm’s length; whether the" }, { "docid": "12861451", "title": "", "text": "in the construction of their new home should be held nondischargeable under the provisions of 11 U.S.C. § 523(a)(2)(A) because the damages were proximately related to false representations made by Boyd to induce them to enter into the construction contract. The Daniels state in their brief that they received a benefit as a result of Boyd’s work on their home and so they suggest an award of damages in the amount of $52,653.13 would be fair and appropriate. (Pis.’ Brief at 8.) Boyd argues that the 727(a) claims should be dismissed because he did not have the requisite fraudulent intent. Boyd also claims that the 523(a)(2)(A) claim should be dismissed because the Daniels did not prove that Boyd made false statements which caused damages to the Daniels. II. DISCUSSION DENIAL OF DISCHARGE: 11 U.S.C. § 727 The burden of proof in a denial of discharge case is on the objecting party. Fed. R. Bankr.P. 4005; Ramsay v. Jones (In re Jones), 175 B.R. 994, 997 (Bankr. E.D.Ark.1994). To prevail under section 727 of the U.S. Bankruptcy Code, the objector need only prove that one, not all of the section 727(a) exceptions to discharge exists. 11 U.S.C. § 727; In re Moss, 266 B.R. 408, 414 (8th Cir. BAP 2001). The denial of a discharge under section 727 is a harsh sanction and therefore the provisions are strictly construed in favor of the debtor. In re Sendecky, 283 B.R. 760, 763 (8th Cir. BAP 2002)(citing In re Korte v. United States of America (In re Korte), 262 B.R. 464, 469 (8th Cir. BAP 2001)). Objecting creditors must prove each of the elements of the section by a preponderance of the evidence. Id. In order to merit denial of a discharge, the misrepresentation or omission must be material, but the threshold to materiality is low and materiality turns on whether there is a relationship to the assets of the estate, not monetary value. Cepelak v. Sears (In re Sears), 246 B.R. 341, 347 (8th Cir. BAP 2000)(citing In re Olson, 916 F.2d 481, 484 (8th Cir.1990)). DENIAL OF DISCHARGE: 11 U.S.C. §" }, { "docid": "5491387", "title": "", "text": "Sharp Int’l Corp.), 403 F.3d 43, 56 (2d Cir.2005); United States v. McCombs, 30 F.3d 310, 328 (2d Cir.1994) (“[WJhere actual intent to defraud creditors is proven, the conveyance will be set aside regardless of the adequacy of consideration given.”); Christian Bros. High Sch. Endowment v. Bayou No Leverage Fund, LLC (In re Bayou Group, LLC), 439 B.R. 284, 304 (S.D.N.Y. 2010). The debtor/transferor’s intent is critical in this analysis. See United States v. McCombs, 30 F.3d at 328; In re Bayou Group, LLC, 439 B.R. at 304. As the fraudulent intent of a debtor is “rarely susceptible to direct proof’, courts must determine whether certain “badges of fraud” exist that establish the debtor’s intent at the time of the transfers. In re Kaiser, 722 F.2d 1574, 1582 (2d Cir.1983); see In re Sharp Int’l Corp., 403 F.3d at 56 (noting that “badges of fraud” are “circumstances so commonly associated with fraudulent transfers that their presence gives rise to an inference of intent.”) (internal citations and quotation marks omitted). The Second Circuit in In re Kaiser articulated these “badges of fraud” to include: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. 722 F.2d at 1582-1583. The establishment of several “badges of fraud” show “clear and convincing evidence of [the debtor’s] actual intent.” In re Actrade Fin. Techs., Ltd., 337 B.R. at 809 (internal citations omitted). The Court has already determined that Trustee has not shown that the salaries were excessive or improper in light of Defendants’ employment with the Debtors, and therefore the Trustee’s Sixth Cause of Action with respect to the" }, { "docid": "18900344", "title": "", "text": "(a) The court shall grant the debtor a discharge, unless— (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account; (D) withheld from an officer of the estate entitled to possession under this title, any recorded information, including books, documents, records, and papers, relating to the debtor’s property or financial affairs. 11 U.S.C. § 727(a)(7) (а) The court shall grant the debtor a discharge, unless— (7) the debtor has committed any act specified in paragraph (2), (3), (4), (5), or (б) of this subsection, on or within one year before the date of the filing of the petition, or during the case, in connection with another case, under this title or under the Bankruptcy Act, concerning an insider. The plaintiffs have the burden of proving facts essential to an objection to discharge by a preponderance of the evidence. See Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); First Commercial Bank. v. Locke (In re Locke), 50 B.R. 443, 451 (Bankr.E.D.Ark.1985); Fed. R.Bankr.P. 4005. However, once a creditor introduces proof that the debtor committed any of the prohibited acts, the debtor has the burden of coming forward with evidence to explain his conduct. Jolles v. Freedman (In re Freedman), 693 F.2d 50, 51 (8th Cir.1982). The plaintiffs introduced evidence of several acts and omissions by Jones in his individual case and by Jones in connection with the P.A. ease. Jones’s discharge can be denied if he violated the provisions of 11 U.S.C. § 727 in either ease. 11 U.S.C. § 727(a)(7) (1988); 4 Collier on Bankruptcy ¶ 727.10 (Lawrence P. King ed., 15th ed. 1994). The plaintiffs’ allegations as to each ground will be discussed separately below: I 11 U.S.C. § 727(a)(4)(A) and (a)(7) (False Oath) The plaintiffs introduced evidence that the debtor in both eases failed to schedule bank accounts and scheduled other accounts inaccurately. The plaintiffs also introduced evidence that Jones failed to schedule property he owned on the date the petition was filed and failed to answer questions correctly on his schedules. Jones" } ]

[ { "docid": "2366611", "title": "", "text": "MEMORANDUM OPINION Motion To Remand MOTLEY, District Judge. Plaintiffs are trucking companies, individual truckers and others who allege in the complaint that defendant union officer and defendant union have engaged in a course of action injuring plaintiffs in their business and occupa tions. The action was commenced in the Supreme feourt of the State of New York, Westchester County, on February 10, 1967. All parties are residents of Westchester County. On March 3, 1967, the action was removed by defendants to this court pursuant to 28 U.S.C. § 1441 as an action arising under the laws of the United States. The action is now before the court on plaintiffs’ motion to remand to the state court pursuant to 28 U.S.C. § 1447. The motion is denied. The complaint alleges facts indicating that defendants have threatened plaintiff trucking companies and other trucking companies with “labor trouble” if plaintiffs and the others use the driving services of individual plaintiffs. It alleges that plaintiff trucking companies have been picketed for a number of years for employing individual plaintiffs, and that the loss of business suffered therefrom has forced one plaintiff to give up his Certificate of Convenience and Necessity, granted by the Interstate Commerce Commission. It is also alleged that another individual plaintiff, who operated a restaurant business in a building leased from the stockholder of one of the plaintiff trucking companies, was picketed because her lessor refused to cancel his lease with a plaintiff trucking company who employed the individual trucker plaintiffs, and that said restaurant plaintiff was forced to go out of business as a result of such picketing. The foregoing facts are alleged to state causes of action under New York General Business Law, New York Labor Law, and New York common law. Damages are pleaded for all plaintiffs, and, in addition, injunctions are asked against defendant’s alleged reprisals, boycotts and picketing. A separate third cause of action alleges that the same facts violate § 303 of the Labor Management Reporting and Disclosure Act of 1959, as enacted by the United States Congress. Such section refers to the activities of" } ]

[ { "docid": "5774948", "title": "", "text": "OPINION SWEET, District Judge. The plaintiffs, James Violette (“Violette”) and Loretta Violette (“Mrs. Violette”) (collectively, the “Violettes”) have moved for rear-gument of this Court’s decision dated December 10, 1992, 808 F.Supp. 1060, pursuant to Local Rule 3(j), or, in the alternate, for certification for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). If upon reargument the Plaintiffs motion is granted, defendant Campbell Chain Co., Inc. (“Campbell”), a division of defendant Cooper Industries, Inc. (“Cooper”), has submitted an affirmation in opposition requesting the Court to sever the case against these two Defendants for a separate trial on the issues of liability. For the reasons given below, the motion to reargue is granted. Upon reargument, the Plaintiffs’ motion for summary judgment is again denied and the Plaintiffs’ motion pursuant to Section 1292(b) motion is also denied. Since the Plaintiffs’ motion for summary judgment is again denied, this Court- does not reach Campbell’s request to sever the case. The Parties Plaintiff James Violette was injured on November 10, 1988, when a chain (the “hoist chain”) broke and the ripper fell upon the Plaintiff, causing serious injury. The hoist chain has been attached to a bulldozer in order to hoist the 10,600 pound ripper while Violette attached the ripper to a bulldozer in order to prepare the equipment for use in clearing a site for construction. He has brought claims for violations of New York State Labor Laws §§ 240 and 200, and for negligence and strict products liability. His wife, Loretta Violette, sues for an additional claim based on loss of consortium. Both plaintiffs are residents of the state of Connecticut. Defendant Armonk Associates, L.P. (“Armonk”) is a New York partnership which was and is the owner of property known as the Dellwood Estate (“Dellwood Estate”), in the Town of New Castle, County of Westchester, New York. Defendant Carol Management Corp. (“Carol”) is a New York corporation and a real estate developer which initiated the construction of Dellwood Estates. Defendant CMC Realty and Development, Inc. (“CMC”) is also a New York corporation and successor to Carol. Defendant Campbell, a North Carolina corporation" }, { "docid": "2665150", "title": "", "text": "10(7) pending final disposition of the charge by the Board. After a hearing on December 6 and 9, 1974, Judge Motley of the Southern District of New York found that the Regional Director had shown reasonable grounds to believe that the Union was engaged in the charged unfair labor practice and granted the injunctive relief. We affirm. Seatrain, a Delaware corporation based in New York, is engaged through subsidiaries in operating, owning and constructing seagoing vessels. One of the wholly-owned subsidiaries is Seatrain Shipbuilding Corp. (“Shipbuilding”), a corporation engaged in the business of building and selling ships. Shipbuilding began operations in 1969 and has engaged in the construction of four vessels, at least one of which has been completed. Shipbuilding’s first vessel, the T/T Brooklyn, was constructed pursuant to a construction contract by Langfitt Shipping Corp., another Seatrain subsidiary. On December 31, 1973, the Brooklyn was sold to Wilmington Trust Company as agent for General Electric Credit Corporation (“GECC”). Wilmington concurrently bareboat-chartered (i.e., chartered without crew) the Brooklyn to East River Steamship Corp., which entered into a management agreement with Anndep Shipping Corp. Finally, Anndep entered into an agreement with Westchester Marine Shipping Co. (“Westchester”), a labor contractor, which undertook to supply the crew for the Brooklyn. Shipbuilding’s second vessel, the T/T Williamsburg, was constructed under a construction contract held by another Seatrain subsidiary, Tyler Tanker Corp. Seatrain has obtained from GECC a commitment letter to purchase this vessel and GECC intends to bareboat-char-ter the vessel to Kingsway Tankers, Inc. Kingsway also has a management agreement with Anndep Corp., and thus West-chester will also supply the crew of the Williamsburg. This case arises because Westchester entered into a collective bargaining agreement with MM&P’s rival union, Marine Engineers Beneficial Association, District 2, and through that organization it has hired some 28 licensed deck officers for the Brooklyn and has begun hiring to the Williamsburg. The MM&P had a collective bargaining agreement with Seatrain and its affiliates and subsidiaries, in effect from June 16, 1972 to June 15, 1975, which covered the licensed deck officers of all U.S.-flag vessels owned, operated, or" }, { "docid": "671748", "title": "", "text": "WHITMAN KNAPP, District Judge. This suit seeks to stop the depositing of inadequately treated sewage into the Byram River (“the River”) by the sewage treatment plant owned and operated by defendant Village of Port Chester. The River (which is named as a plaintiff in the action) is a federal navigable river which forms a portion of the boundary line between Connecticut and New York, and eventually flows into Long Island Sound. The other plaintiffs are the Byram River Pollution Abatement Association, a Connecticut corporation created to protect and improve the quality of the River’s water; the Town of Greenwich, Connecticut, a municipal corporation bordering on the River; and J. A. B. Haughwout, an individual who lives on the Connecticut shores of the River, and is allegedly directly and adversely affected in the use of his land because of the pollution. The defendants are the Village of Port Chester, a municipal corporation of the State of New York, which owns and operates the sewage treatment plant alleged to be polluting the River; the County of Westchester, in which Port Chester is located, and which along with Port Chester bears the primary responsibility for designing and constructing a new sewage treatment plant; Alfred Del Bello, the Chief Executive of Westchester County; the Interstate Sanitation Commission (“Interstate Commission”), a tri-state body established with the approval of Congress to prevent pollution of certain waters including the River; Thomas Glenn, the director of the Interstate Commission; the New York State Department of Environmental Conservation (“DEC”), which establishes standards for the construction of sewage plants and approves such plans; and James L. Biggane, the Commissioner of the DEC. Plaintiffs allege that all of the defendants are jointly and severally liable for non-feasance in having failed to construct a secondary sewage treatment plant which would abate the pollution of the River. The plaintiffs seek broad equitable and declaratory relief, including an order setting a timetable for completion of an adequate sewage treatment plant; the appointment of a receiver to supervise the designing and construction of such a facility; a declaration that the defendants have been derelict in" }, { "docid": "4295130", "title": "", "text": "and severally liable for delinquent benefits contributions plus interest and attorneys’ fees “by virtue of their ‘alter ego,’ ‘single employer’ and/or ‘double-breasted’ relationship.” Further, the plaintiffs assert that the individual defendants should be held personally liable for the contributions because they “attempted to defraud the Funds by, inter alia, use of the foregoing corporations.” Only the defendants Robco and Defilippis have responded to the Funds’ motion arguing that there are sufficient issues of material fact to warrant denial of summary judgment. I. Background A. The facts The Funds are employee benefit plans within the meaning of ERISA, 29 U.S.C. § 1002(3), and are maintained pursuant to the terms of collective bargaining agreements (“Agreement”) between the Building Material Teamsters Local 282, affiliated with the International Brotherhood of Teamsters, AFL-CIO (the “Union”) and various employers. The Funds are operated pursuant to the terms of the Agreement and an Agreement and Declarations of Trust (the “Trust Agreement”) incorporated into the collective bargaining agreement by reference. The Trust Agreements set forth the rules under which the Funds are administered. Robco and Dana-Sal are in the excavation business, transporting material such as dirt, debris and asphalt by truck, to and from construction sites. The parties disagree as to Industries’ operations. The Funds contend that Industries is also in the excavation business. The defendants argue that Industries supplies “roll off’ containers for rubbish removal, a separate enterprise. According to the Funds, all three corporate defendants maintained their offices at the same address, 23 Ash Street in Brooklyn, New York until August 1992 when Robco began dispatching trucks from a yard located in College Point, New York. Defilippis is the president of Robco. Ferraioli is Defilippis’s husband and is the president and chief executive officer of Industries and the only principal of Dana-Sal. He also runs the day to day operations of Robco, including managing labor relations and controlling payroll practices. Robco was a signatory to the collective bargaining agreement with the Union for the period from July 1, 1991 through June 30, 1993. The Agreement bound Robco to the terms of the Trust Agreement which required" }, { "docid": "3504528", "title": "", "text": "MEMORANDUM DECISION GOETTEL, District Judge. Plaintiff James F. Tobin and the other named plaintiffs are members of Local 501 of the International Brotherhood of Electrical Workers (“IBEW”). The defendants include Local 501’s parent union, the IBEW; J.J. Barry, Vice President of the IBEW; and Local 1249 of the IBEW. Additional defendants are the Yonkers Contracting Co., Inc. (“Yonkers”), L.K. Com-stock & Co., and Yonkers-Comstock Joint Venture (collectively, the “employer-contractors”), and their bargaining representative, the Northeastern Line Contractors Chapter (“NLCC”) of the National Electrical Contractors Association. This case involves a dispute over work assignments on a project to repair the third rail of the Metro North Commuter Railroad on its Hudson and Harlem divisions. Ordinarily, Local 501 has “jurisdiction” over outdoor electical line construction and repair within Westchester County. “Jurisdiction” means that the local is authorized by the IBEW to handle all electrical work in a particular area. The plaintiffs allege that defendants Barry and the IBEW arbitrarily transferred jurisdiction over the Westchester County segment of the project from Local 501 to Local 1249. Although the plaintiffs have retained their jobs, they are now working under contracts negotiated by Local 1249, rather than their own local. They allege that, because of this, they have suffered financial and political losses. The plaintiffs assert that this transfer of jurisdiction was a breach of the IBEW constitution, and, therefore, a violation of Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 (1982). They claim that the transfer deprived them of their due process rights guaranteed under Section 101(a)(5) of the Labor Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 411(a)(5) (1982). Furthermore, they allege that the IBEW breached its duty of fair representation to its members and that the employer-contractors on the project breached their contracts with the plaintiffs. Accordingly, the plaintiffs seek to restore jurisdiction over the Westchester County segment of the Metro North project to Local 501, and ask this Court to award them compensatory damages for lost wages and benefits resulting from the transfer. Before us now are motions to dismiss or for summary judgment by" }, { "docid": "5056404", "title": "", "text": "MEMORANDUM AND ORDER McLAUGHLIN, District Judge. Plaintiffs in this diversity-based action seek damages for breach of contract and unjust enrichment based on an alleged oral beer distribution agreement with defendant Miller Brewing Company (“Miller”). Miller has moved for summary judgment pursuant to Fed.R.Civ.P. 56, arguing that the contract claims are barred by New York’s statute of frauds and that the unjust enrichment claim fails to state a claim upon which relief can be granted. For the reasons stated below, defendant’s motion is denied. Facts Plaintiff corporations (“Fatato”, “NYS-TS”, and “Vasiliow”) are wholesale beer distributors in New York State. Miller, a Wisconsin corporation doing business in New York State, is a brewer of beer. De-Crescente Distributing Co. (“DeCrescente”) and the now-defunct Better Brands of New York, Inc. (“Better Brands”) were New York distributors of Miller products. Plaintiffs allege that Better Brands, a wholly-owned subsidiary of Miller, was experiencing labor difficulties during the early part of 1979, causing an interruption in the flow of Miller beer into the New York City area. Plaintiffs allege that Miller, acting through DeCrescente as its agent, offered plaintiff Fatato an exclusive distributorship of its products in Kings, New York, Bronx, and Westchester Counties if Fatato could, despite the “strike activities” of Local 812 of the Soft Drink Workers Union, “maintain an uninterrupted flow of beer to all the major supermarkets, local home distributors, taverns, restaurants and pubs previously serviced by” Better Brands. In exchange for such distribution during the strike, Miller allegedly offered to continue the exclusive distributorship with Fatato or its designees after the strike. Plaintiffs apparently agreed and began to distribute Miller beer. They allegedly spent large sums to improve their equipment and warehousing capabilities and also sustained property damage as a result of the labor unrest. They attribute these damages to their compliance with defendant’s demand that the flow of Miller products be uninterrupted during the strike, and allege that Miller was thereby unjustly enriched “in the maintenance of its reputation and public image regarding the quality and availability of its products and in its profits.” Plaintiffs next allege that in July 1980," }, { "docid": "4295131", "title": "", "text": "Robco and Dana-Sal are in the excavation business, transporting material such as dirt, debris and asphalt by truck, to and from construction sites. The parties disagree as to Industries’ operations. The Funds contend that Industries is also in the excavation business. The defendants argue that Industries supplies “roll off’ containers for rubbish removal, a separate enterprise. According to the Funds, all three corporate defendants maintained their offices at the same address, 23 Ash Street in Brooklyn, New York until August 1992 when Robco began dispatching trucks from a yard located in College Point, New York. Defilippis is the president of Robco. Ferraioli is Defilippis’s husband and is the president and chief executive officer of Industries and the only principal of Dana-Sal. He also runs the day to day operations of Robco, including managing labor relations and controlling payroll practices. Robco was a signatory to the collective bargaining agreement with the Union for the period from July 1, 1991 through June 30, 1993. The Agreement bound Robco to the terms of the Trust Agreement which required Robco to submit monthly remittance reports regarding the hours worked by covered employees and the contributions owed to the Funds as a result. Industries was a party to an identical Agreement with the Union effective December 1, 1990 through June 30, 1993. Dana-Sal was not a party to the Agreement. From the effective date of its Agreement, Industries failed to supply any remittance reports to the Funds. The Funds claim that the corporate defendants are operated as a single employer, alter egos and constitute a double breasted operation. According to the plaintiffs, Rob-co, Industries and Dana-Sal, shared common ownership, management and supervision, namely Ferraioli and Defilippis; shared common facilities and equipment; had interrelated operations; shared common customers; and maintained centralized labor relations. For example, the corporate defendants shared employees, such as Ralph Montchal and Tommy Tenza, who worked as dispatchers for Dana-Sal, Industries and Robco. In addition, covered employees who performed work for Robco were paid by all three corporate defendants. All three companies shared customers including companies known as “Cousins-Civetta,” “New York Paving,” “Pile" }, { "docid": "6949679", "title": "", "text": "FREEDMAN, Circuit Judge. Plaintiffs, three truck drivers formerly employed by Eastern Automobile Forwarding Company, Inc., brought this action for themselves and on behalf of 52 other truck drivers of Eastern under § 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), authorizing suits to be brought in the district courts for “violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce”. Eastern and M & G Convoy, Inc., were each engaged in the business of hauling new automobiles. Their business which is relevánt here was the hauling of new automobiles from Chrysler Corporation’s assembly plant at Newark, Delaware, to various retail dealers. Eastern’s territory for these shipments was within New Jersey and New York, and M & G’s was in eastern Pennsylvania and parts of New England and New York. The individual delivery points within the areas were designated and assigned by the manufacturer. In January of 1964, pursuant to a written agreement, Eastern sold to M & G all its real estate and substantially all of its operating equipment. Not included in the sale were Eastern’s Interstate Commerce Commission operating certificate, licenses, good will, accounts receivable and cash. It is agreed by the parties that regulations of the Interstate Commerce Commission prohibited a sale of Eastern’s franchise rights to M & G because both parties were common carriers. After the consummation of the sale Eastern went out of business and M & G thereupon began serving for Chrysler Corporation the territory which had previously been assigned to Eastern. Plaintiffs and some of the other Eastern drivers on whose behalf this action was brought signed up as drivers for M & G immediately after the agreement was signed. A question at once arose regarding their seniority in relation to M & G's existing employees. •Eastern’s employees relied particularly on Article IV, § 5, of the collective bargaining agreement, ******which provides: “Section 5. Mergers, Etc. In the event that- the Employer absorbs the business of another private contract or common carrier or is a party to a merger of lines" }, { "docid": "23408934", "title": "", "text": "new Section 13(d), which is before us, but again the primary issue was the adequacy of the compliance. Thus the issues raised on this appeal are said to be of first impression. Plaintiff Bath Industries, Inc. (Bath) is a Delaware corporation with its principal place of business in Milwaukee, Wisconsin. Bath was organized as a holding company in 1967. Its Milwaukee office consists of a small staff including its president and chief executive officer, William D. Kyle, Jr. (Kyle), its executive vice president, Robert R. Greenwalt, and other personnel whose function it is to furnish overall policy, planning, financial, operating and legal guidance to Bath’s subsidiaries. Bath has three wholly-owned subsidiaries. Bath Iron Works Corporation (BIW), located in Bath, Maine, has been engaged in shipbuilding for over 70 years. Since about 1935 its principal business has been the construction of destroyers for the United States Navy. Ninety-five percent of its current business is with the Navy. Congoleum Industries, Inc. (Congoleum) was acquired by Bath in 1968. It is engaged in the manufacture of floor coverings, household furnishings and related products. It has seventeen plants located in New Jersey and throughout the country. Pennsylvania Crusher Corporation manufactures and sells gyratory crushers, impacters and other equipment. Nine named defendants were made parties to the original complaint. Three of these were dismissed without prejudice after they signed a settlement agreement with Bath. Three others have indicated a desire to be similarly treated, but have been denied dismissal pending a later determination of the validity of the settlement agreements by the trial court. Two of the original defendants join in this appeal. Defendant-appellant Emmet J. Blot (Blot) is the president and sole owner of Godolphin, Inc. Blot and Godolphin operate as financial consultants. Blot is a shareholder of Bath. Since April, 1966, he has been a director of Bath and served as chairman of its executive committee from April, 1967 to April, 1969. Defendant-appellant Hambro American Bank & Trust Co. (Hambro American) is a New York banking corporation. It is owned by a Delaware holding company, Eurus, Inc. Eurus, Inc., is, in turn, owned" }, { "docid": "17899128", "title": "", "text": "DECISION ON COMPLAINTS OF AMOCO OIL COMPANY SEEKING RELIEF FROM AUTOMATIC STAY HOWARD SCHWARTZBERG, Bankruptcy Judge. Amoco Oil Company (“Amoco”) seeks relief from the automatic stay pursuant to Code § 362(d) in order to proceed with an eviction order directed against Peter Heim-uller, who is a principal in two affiliated businesses which have filed Chapter 11 petitions with this court, namely Peter’s Service Center and Autobahn Classics, Inc. The premises in question involves a gasoline station owned by Amoco and located in New Rochelle, New York. FINDINGS OF FACT 1. On January 11,1983, the debtors, Peter’s Service Center and its affiliated corporation, Autobahn Classics, Inc., each filed with this court petitions for reorganization under Chapter 11 of the Bankruptcy Reform Act of 1978. The debtors continue to operate their businesses as debtors in possession pursuant to Code §§ 1107 and 1108. 2. The debtor, Peter’s Service Center, is a partnership consisting of Peter Heimuller and Jane Petry. The debtor, Autobahn Classics, Inc., is a corporation engaged in the business of repairing automobiles. Its president and sole shareholder is Peter Heimuller. Both the partnership and the corporate debtors operate their businesses at 690 Main Street, New Rochelle, New York. Peter Heimuller, individually, has not filed any petition for relief and is not a debtor under the aegis of this court. 3. Pursuant to a lease dated March 1, 1974, the plaintiff, Amoco, as the owner of a service station located at 690 Main Street, New Rochelle, New York, leased the premises to Peter Heimuller, individually. The lease was for a period of one year with two one-year extensions. The lease expired by its own terms in 1977. Thereafter, Amoco sought to evict Mr. Heimuller from the premises. Peter Heimuller, in turn, commenced an action in the New York Supreme Court, Westchester County, under the name of Peter Heimuller, d/b/a Peter’s Service Center and asserted the right to remain in possession as a motor fuels franchisee. Amoco was enjoined from evicting Mr. Heimuller during the pendency of this action. Prior to the trial in that action a stipulation was entered into in" }, { "docid": "9496437", "title": "", "text": "OPINION AND ORDER SWAIN, District Judge. Plaintiff Terence R. Cameron (“Plaintiff’ or “Cameron”) brings this action against Marvin V. Church, Plaintiffs former supervisor at the Westchester County Department of Transportation (“Church” and “DOT”, respectively), Henry J. Stanton, the Deputy Commissioner of the DOT (“Stanton”), Jay Hashmall, the Deputy County Executive for the County of West-chester (“Hashmall”), Richard Manley, the Director of the Westchester County Office of the Disabled (“Manley”), Paula Redd Zeman, the Commissioner of Human Resources for the County of Westchester (“Zeman”), and the County of Westches-ter, New York (“Westchester County” or “County”) (collectively, “Defendants”). Plaintiff asserts causes of action: pursuant to 42 U.S.C. section 1988 (“Section 1983”), for violation of his rights to free speech, freedom of association, and the right to petition the government for redress under the First Amendment of the United States Constitution; pursuant to 42 U.S.C. section 1981, as amended, and Section 1983, for race discrimination, retaliation, and constructive discharge; pursuant to 42 U.S.C. section 1985(3), for conspiracy to discriminate and to retaliate; and, pursuant to 42 U.S.C. section 1986, for knowledge of the conspiracy and failure to prevent it in connection with the alleged racial discrimination and retaliation. Plaintiff also seeks damages pursuant to the anti-discrimination provisions of New York Executive Law Section 296. The Court has jurisdiction of the federal claims asserted in this action pursuant to 28 U.S.C. sections 1331 and 1343. Plaintiff does not specify a jurisdictional basis for his claims under the New York Executive Law; he presumably intends to invoke the Court’s supplemental jurisdiction under 28 U.S.C. section 1367 as to those claims, and the Court finds that it has jurisdiction of the claims under that statutory provision. Before the Court are a motion by Church for summary judgment pursuant to Federal Rule of Civil Procedure 56 and a motion by the remaining Defendants to dismiss the complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Both motions are premised principally on arguments that the instant action is precluded in whole or in part by the" }, { "docid": "5334813", "title": "", "text": "LASKER, District Judge. The United States brought the principal suit on behalf of the United States Postal Service (the “Postal Service” or the “Service”) to condemn land for the construction of a new General Mail Facility and Vehicle Maintenance Facility (“GMF/VMF” or “facility”) to serve all of Westchester and Putnam Counties, New York. The City of New York (the “City”) filed a separate suit for declaratory and injunctive relief in City of New York v. United States Postal Service, 91 Civ. 0758 (MEL). West-chester County and the Purchase Environmental Protective Association (“PEPA”), now joined by the Town of Harrison, and the City all move for a preliminary injunction barring construction of the postal facility pending completion of an Environmental Impact Statement (“EIS”). The United States moves for partial summary judgment on the issues raised by the motions for a preliminary injunction. The proposed facility will require the paving of at least six acres of currently undeveloped land and will require the erection of two large buildings totalling roughly 873,000 square feet. The land is adjacent to the Westchester County Airport and therefore is extremely desirable to the Postal Service; it also includes wetlands and is within 700 feet of the Kensico Reservoir (the “Reservoir”), through which ninety percent of New York City’s drinking water passes. These circumstances make critical the evaluation and management of the project’s possible environmental consequences. The motions put in issue the Postal Service’s finding that its proposed facility will have no significant impact on the environment, and that accordingly no full EIS need be prepared before its construction pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. (1988). For the reasons discussed below, the motions for a preliminary injunction are granted, and the United States’ motion for summary judgment is denied. I. For several years the Postal Service has engaged in planning to replace its current Westchester County, New York General Mail Facility and Vehicle Maintenance Facility, which it characterizes as “outmoded and inadequate.” Review of a variety of possible locations led to the selection of the site now at issue," }, { "docid": "17710722", "title": "", "text": "limited his appeal to the convictions under the Hobbs Act contained in the first two counts of the indictment. I Since 1956 the appellant Daley has been Secretary-Treasurer, or principal officer, of Teamsters Local 445 (Local) which has several thousand members and a territorial jurisdiction which embraces the counties of Westchester, Putnam, Dutchess, Rockland, Ulster, Orange and Sullivan in the State of New York. The evidence presented by the Government indicated that in the summer of 1971 Daley requested Anthony Alecca, Jr., the President and number two officer of the Local, to obtain for him some stone for the purpose of constructing a driveway for Daley’s camp or mountain cabin in Windham, New York. Alecca then approached Thomas Turco, who was a superintendent for Hudson Cement in Kingston, New York, and requested approximately ten loads of stone for Daley’s use. Turco in turn discussed the matter with his superior Robert Greene, general manager of Hudson Cement, an employer which was then in contract negotiations with Local 445. Greene decided to provide Daley with a couple of loads of stone in order to avoid any union problems. Daley was then advised through Alecca that Hudson Cement would supply the stone. The next step was to obtain the equipment and personnel for the project. Alecca instructed Thomas Clausi, the Local 445 shop steward on a project to repair the New York State Thruway near Kingston, to arrange for the trucks and truckers. Alecca told Clausi to have two Local 445 owner-operators provide dump trucks and drivers to load and haul the stone after working hours. Eventually, stone was delivered to Daley’s cabin on three separate occasions: September 3, 4 and 11, 1971. In all, thirty to thirty-six truck loads of stone totalling about 600 tons were delivered by union drivers to Daley’s cabin. Some ten to fifteen ten-wheel dump trucks, a tractor trailer and other equipment supplied by Local 445 owner-operators and contractors who employed union members were used to make the deliveries. The stone was then selling at a delivered price of nine dollars per ton at Windham, which was 60" }, { "docid": "1943353", "title": "", "text": "LUMBARD, Circuit Judge: This is a consolidated original petition for review and an appeal, the petition challenging the issuance of a National Pollutant Discharge Elimination System (NPDES) permit by the Environmental Protection Agency (EPA), and the appeal questioning the dismissal on jurisdictional grounds by Judge Dudley B. Bonsai of a similar challenge initiated in the District Court for the Southern District of New York. 394 F.Supp. 211 (S.D.N.Y.1975). The disputed action is the issuance of an NPDES permit to the intervenors by the Administrator of EPA pursuant to § 402 of the Federal Water Pollution Control Act Amendments of 1972 (“Water Act”), 33 U.S.C. § 1342. The permit authorizes sewage disposal into Brown Brook in the Town of Somers in Westchester County, New York. For reasons given below we affirm the district court’s dismissal on jurisdictional grounds and deny the petition for review as untimely- The appellants-petitioners, who were plaintiffs below, are: Sun Enterprises, Ltd. (Sun), a corporation which owns over 500 acres of land downstream of the discharge point in the Town of Somers, Westchester County; Southern New York Fish and Game Association, Inc., a non-profit fishing and hunting society in the area; Lyman E. Kipp, the president of Sun who lives on the Sun property; Richard E. Homan, a tenant of Sun and an officer of Southern New York Fish and Game Association; No Bottom Marsh, the marsh through which the brook which receives the discharge flows; and Brown Brook, which is classified by New York State as a trout stream on Sun’s property. The appellees, defendants below are: Russell E. Train, Administrator of EPA, also the respondent in this proceeding; Gerald Hansler, Regional Administrator of EPA for Region II (which includes New York); and Rogers Morton, former Secretary of the Department of the Interior (Interior). The intervenors, defendants below, are Heritage Hills of Westchester (HHW), a partnership, its principals and related corporations all of whom are engaged in the construction of a condominium housing project, in Somers, which will consist of 3,100 units and extensive recreational facilities upstream of the Sun property. The facts which gave rise" }, { "docid": "1227669", "title": "", "text": "MEMORANDUM AND ORDER PFAELZER, District Judge. The parties’ Cross-Motions for Judgment on the Pleadings came on for hearing on December 3,1979. Having heard oral argument, considered the papers submitted, and taken the matter under submission, the Court determines that defendants’ Motion for Judgment on the Pleadings should be granted and plaintiffs’ Motion denied. The Court has jurisdiction over this suit for declaratory judgment under 29 U.S.C. §§ 185(a), 186(e) and 28 U.S.C. § 2201. The plaintiffs seek a determination that owner-operators of trucking equipment used in the building and construction industry are employees under § 302 of the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 186, and that § 302 therefore does not preclude employers who employ the owner-operators from making contributions to plaintiffs’ trust fund for their benefit. The Joint Council of Teamsters No. 42, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and General Teamsters and Food Processing Local No. 87, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as “the Unions”) are the plaintiffs in this case. Defendants are the Associated General Contractors of California, Inc. (“AGC”), the Building Industry Association of California, Inc. (“BIA”), the Engineering Contractors Asso ciation, Inc. (“ECA”) and the Southern California Contractors Association, Inc. (“SCCA”) (hereinafter all defendants referred to as “the Employers”). The AGC, BIA, ECA, and SCCA are voluntary associations of employers in the building and construction industry in Southern California. These associations represent their members in negotiating and administering collective bargaining agreements with the Unions, which in turn represent employees and others in Southern California in the building and construction industry. Defendants have entered into a Master Labor Agreement (“MLA,” effective 1977-80) with the Unions, including within the definition of “employees” not only driver-employees, who operate dump trucks and other construction vehicles owned by defendants, but also owner-operators, who own individual construction vehicles used to perform hauling services for the Employers. In compliance with the MLA, the Employers have been making contributions on behalf of the employees and the covered owner-operators to a trust fund. The trust fund, established" }, { "docid": "2645572", "title": "", "text": "CALEB M. WRIGHT, Chief Judge. This matter is before the court on plaintiffs’ motion for a preliminary injunction. Plaintiffs are three individuals, formerly truck drivers employed by Eastern Automobile Forwarding Company, Inc. (Eastern). They bring this action for themselves and in behalf of fifty-two individuals, similarly situated, all former drivers of Eastern. The complaint alleges that they are members of defendant Highway Truck Drivers and Helpers, Local 107, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Eastern was a common carrier engaged in the transportation of automobiles. It hauled automobiles out of the Chrysler assembly plant at Newark, Delaware, to points in New Jersey and New York. Defendant M & G Convoy, Inc. (M & G) is also a common carrier of automobiles, hauling automobiles for Chrysler prior to January 15, 1964, to eastern Pennsylvania, parts of New England, and parts of eastern New York, including Westchester County and Brooklyn. Both Eastern and M & G had Interstate Commerce Commission operating rights covering the same geographical area, but they were not competitors since Chrysler allocated territory to each and each handled delivery of automobiles in its allocated area only. Because of the increased competition of the railroads, Eastern found it was not getting enough Chrysler business to operate at a profit. Wolverton, the president and owner of Eastern, sought additional traffic from Chrysler, but was informed nothing could be done and that as railheads were established by the Pennsylvania Railroad, Eastern’s business would be decreased. This information was furnished Wolverton by the traffic manager of Chrysler at a meeting in Detroit in December of 1963. Wolverton then discussed with M & G the possibility of selling out to it, and shortly thereafter Wolverton and Mr. Hand of M & G met in Detroit with the traffic manager of Chrysler. Wolverton informed Chrysler he had made an agreement to sell out to M & G and was assured that Chrysler “would go along” with Eastern and deliver cars to them until the sale to M & G became effective. The agreement provided for the purchase of" }, { "docid": "4295132", "title": "", "text": "Robco to submit monthly remittance reports regarding the hours worked by covered employees and the contributions owed to the Funds as a result. Industries was a party to an identical Agreement with the Union effective December 1, 1990 through June 30, 1993. Dana-Sal was not a party to the Agreement. From the effective date of its Agreement, Industries failed to supply any remittance reports to the Funds. The Funds claim that the corporate defendants are operated as a single employer, alter egos and constitute a double breasted operation. According to the plaintiffs, Rob-co, Industries and Dana-Sal, shared common ownership, management and supervision, namely Ferraioli and Defilippis; shared common facilities and equipment; had interrelated operations; shared common customers; and maintained centralized labor relations. For example, the corporate defendants shared employees, such as Ralph Montchal and Tommy Tenza, who worked as dispatchers for Dana-Sal, Industries and Robco. In addition, covered employees who performed work for Robco were paid by all three corporate defendants. All three companies shared customers including companies known as “Cousins-Civetta,” “New York Paving,” “Pile Foundation Construction Co. Inc.” and “Perez Interboro Asphalt Co., Inc.” They also shared employees, and used their equipment on the same construction sites. One example of the interrelationship between the corporate defendants is with respect to a contract between Robco and Perez Interboro Asphalt Co. to perform “unclassified excavation work on the 14th Street Reconstruction Project” in Manhattan. The contract was executed by Defilippis on behalf of Robco and included work covered by the collective bargaining agreement. Dump trucks bearing the name “Ferraioli Industries” or “Dana-Sal Equipment” were used to perform work on the 14th Street Reconstruction Project between July 2, 1991 and July 17,1991. On July 17,1991, those trucks were chased off the site by a shop steward. The same trucks appeared the next day with a new sign on the vehicles reading “Robco Contracting Enterprises, Ltd.” The trucks were then used to perform the same work as before with some of the same drivers. The Funds further assert that Defilippis and Ferraioli were responsible for the remittance reports upon which contribution pay ments" }, { "docid": "929330", "title": "", "text": "to locate sufficient work to enable it to provide an owner-operator with a livelihood was not envisioned by the parties. Of equal importance is the fact that the owner-operators themselves supplied the expensive and complex machinery which enabled them to engage in their independent businesses and permitted them to move freely from job to job. Restatement § 220(2) (e). Their own ability to raise capital and maintain credit, and not that of the construction companies, was the primary factor which determined whether they would be able to maintain themselves and their families. They had to bear the financial risks involved regarding their equipment. Compare A. Pala-dini, Inc., supra, 168 NLRB at 952-953. Moreover, the skill which they themselves had acquired in one way or another determined whether they could be licensed to operate their vehicles. Restatement § 220(2) (d). The owner-operators are not individuals whose acquisition of relevant skills depended upon exposure to machinery, personnel and jobs provided by.a specific general contractor. Finally, the parties clearly did not believe that they were creating an employer-employee relationship. The construction companies were primarily interested in the trucks possessed by the owners, as the rental agreements make clear. Whether these operators worked was thus controlled not so much by whether the construction companies needed men, as by whether they needed the equipment which the operators owned. Furthermore, if the truck ran out of gas, and the owner did not fill the tank, he did not work. If it broke down, and the owner did not have it repaired, he did not work. If the taxes on the truck were not paid, and the owner did not pay them, he did not work. If the owner did not obtain the requisite insurance, he would not be engaged by the construction companies. All this was by agreement of the parties. In sum, I do not find in this record substantial evidence that the significant aspects of control required for purposes of the Act’s coverage were possessed by the construction companies. Believing as .1 do that the truly relevant incidents of control must be found in" }, { "docid": "20370570", "title": "", "text": "BUNTON, Senior District Judge. FACTUAL BACKGROUND Dayton-Scott Equipment Company is a Houston based company that rents heavy cranes to large contractors and industrial companies throughout the United States. In 1990, Union Carbide Chemicals and Plastic Company approached Dayton-Scott to lease a ringer attachment for a crane to be used on a construction project at Union Carbide’s Point Comfort plant in Seadrift, Texas. The ringer attachment was located on a construction site in Sulphur, Louisiana and needed to be transported to the Union Car bide construction site in South Texas. Dayton-Scott solicited for transportation service from several shippers and ultimately awarded the bid to Rig Runner, a licensed intrastate and interstate common carrier. Rig Runner in turn hired two drivers, Williams and Davidson, to transport the crane parts from Louisiana to Texas. Williams and Davidson were independent contractors who owned and operated their own trucks. On the night of August 28, 1990, Jeremy Brian Toops (“Toops”) was riding in a car towed by another car which was driven by Thomas Holm. While Toops’ car was being towed down Highway 288 near Angleton in Brazoria County, Texas, it was struck from behind by the tractor-trailer driven by Davidson. The accident resulted in Toops ■ suffering severe injuries and bums from which he later died. PROCEDURAL BACKGROUND Toops’ parents filed suit in Brazoria County against, inter alia, Davidson, Rig Runner, and Dayton-Seott. During the litigation, it became apparent to Rig Runner that its $750,000.00 insurance policy would be insufficient to cover any potential liability in the Texas tort suit. Consequently, Rig Runner and Davidson demanded that Dayton-Scott’s insurers, which included Appellant United States Fidelity and Guaranty Company (“USF & G”), defend them and pay any judgment rendered against them up to policy limits. USF & G and the other insurers denied that coverage existed and refused to defend them or pay any judgment. Two jury interrogatories were submitted to the Brazoria County jury regarding Dayton-Scott’s relationship with Rig Runner. The first interrogatory asked whether Dayton-Scott and Rig Runner were engaged in a joint venture to which the jury answered “no.” The second interrogatory" }, { "docid": "23266121", "title": "", "text": "KATZMANN, Circuit Judge. In this action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), Con Edison (“Con Ed”) seeks to be reimbursed by UGI Utilities, Inc. (“UGI”) for costs it has incurred cleaning up certain contaminated sites in Westchester County, New York. The district court (Chin, J.) granted summary judgment to UGI on all claims. Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 310 F.Supp.2d 592, 610 (S.D.N.Y.2004). In this opinion, we address whether, in light of a recent Supreme Court decision, Cooper Industries, Inc. v. Aviall Services, Inc., — U.S. —, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), subject matter jurisdiction exists in this case. We conclude that it does because Con Ed’s claims arise under CERCLA. In a summary order issued simultaneously with this opinion, we analyze the merits of the district court’s summary judgment grant. We affirm in part and reverse in part and remand for further proceedings. BACKGROUND This litigation concerns the cleanup of sites in Westchester County that allegedly were contaminated by operations at Manufactured Gas Plants, industrial facilities at which gas was produced from coal, oil, or other energy sources. In October 1999, the New York State Department of Environmental Conservation (the “Department”) asked Con Ed for information about locations at which the company or its predecessors formerly operated Manufactured Gas Plants. Con Ed owns or operates many such plants, including ten in Westchester County, New York (the “Westchester Plants”). On August 15, 2002, Con Ed entered into a “Voluntary Cleanup Agreement” to clean up more than 100 sites at which Con Edison or its predecessors might have formerly owned or operated Manufactured Gas Plants. These sites apparently included the sites of seven of the ten Westchester Plants. Prior to entering into this Voluntary Cleanup Agreement, Con Ed sued UGI seeking to recoup costs Con Ed had incurred and would incur in cleaning up sites allegedly contaminated by the ten West-chester Plants. Con Ed represents that it has already expended in excess of $4 million to investigate and clean up the sites of the Westchester Plants, and that" } ]

[ { "docid": "22680765", "title": "", "text": "of an- agreement, held the legal title to the patent in trust for the complainant, iñ violation of which he was making usé of his legal rights. It was held, upon a bill filed for.an injunction and account, that it was a case under the patent laws, and the defendant was required to account for the orofits he had made, according to, the rule in Mowry v. Whitney, supra. The Chief Justice said, p. 230: “Profits actually -ealized are usually, in a case like this, .the measure of unliquidated- damages Circumstances may, however, arise which would justify the- addition of interest- in order to give' complete indemnity for losses sustained by wilful infringements.” By the act of July 8, 1870, c. 230, Congress revised, consolidated, and amended the statutes relating to patents ajnd copyrights. -16 Stat. 198. The' fifty-ninth section renewed the provision previously in force, that damages- for infringement might be recovered by action on the case, and that whenever, in any such action, a verdict shall'be rendered for the plaintiff, the court m¡ay enter judgment therein for any sum above the amount found by the verdict as the actual damages sustained, .according to the circumstances of the case, not exceeding three 'times the amount of the verdict. The fifty-fifth section is as follows-: — “ That all actions, suits, controversies, and cases arising Under the patent-laws of the United States shall be originally cognizable,as well in equity as at law, by the Circuit Courts of the United States, or any District Court having the power and jurisdiction of a Circuit Court, or by the Supreme Court of the District of Columbia,- or of any Territory; and the court shall have power, upon bill in equity filed by any .party aggrieved, to grant injunctions, according to the course and principles , of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may- deem reasonable; and upon a decree being rendered in any such..cases for an infringement, the complainant shall be. entitled to recover, in addition to the profits to" } ]

[ { "docid": "10855686", "title": "", "text": "97, 26 L. Ed. 54, and Root v. Railway, 105 U. S. 189, 192, 193, 26 L. Ed. 975, the jurisdiction of the federal courts in patent cases and the remedies provided by statute for patentees for the invasion of their rights, but not the point now presented, were under consideration; but the language employed is suggestive of the soundness of Judge Jackson’s conclusions. While entertaining the highest respect for the decisions in which there is adherence to the rule urged by appellants, this court has committed itself to, and we are content to abide by, the doctrine announced in the Blount Case, which seems to us to accord with the plain and necessary import of the language of section 4921, R. S. (U. S. Comp. St. 1901, p. 3395), which confers on the appropriate courts the power to grant injunctions in patent cases “according to the course and principles of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may deem reasonable.” As regards the evidence on the question of infringement, there was presented to the trial court a question of fact, substantial, serious, doubtful, and of great importance to the appellee, whose decision in its favor would entitle it to ultimate relief. That it would not ultimately succeed was not reasonably clear. The situation was such that the trial court might properly conclude that injury certain, great, and irreparable would result to the appellee through interference with, and impairment of, appellee’s business and a multiplicity of suits and their attendant expense, if its motion were denied and the final decision should be in its favor, while the inconvenience and loss to the appellants, should the injunction be allowed to go, would be comparatively small and insignificant, for which they could be abundantly indemnified by a proper bond. The court, under such circumstances, could rightly maintain the status quo pending the suit by granting a provisional injunction, or by exacting a proper bond from the appellants to protect the appellee from loss. Did the court abuse its legal discretion" }, { "docid": "22766318", "title": "", "text": "one, and, by reason of the migratory character of oil and gas,, to be as injurious to and as destructive of the lessor’s rights as would be continuing trespass or waste. The forfeiture was, therefore, not one which equity would have relieved. The forfeiture having been rightfully asserted under circumstances where the lessee was not entitled to relief in equity, the remaining question is: Can the lessor maintain a bill to establish the forfeiture as matter of record, and to cancel the lease as a cloud upon her title? It will be answered lay considering whether “a plain, adequate, and complete remedy may be had at law.” (Rev. St. § 723 [U. S. Comp. St. 1901, p. 583]), and also whether there is any insuperable objection in equity to granting relief which involves giving effect to a completed forfeiture. ‘ A remedy at law is not adequate, in the sense that it will deprive a court of equity of jurisdiction, unless it is as certain, prompt, and efficient to the ends of justice.as the remedy in equity. Boyce’s Ex’rs v. Grundy, 3 Pet. 210, 215, 7 L. Ed. 655; Kilbourn v. Sunderland, 130 U. S. 505, 514, 9 Sup. Ct. 594, 32 L. Ed. 1005; Gormley v. Clark, 134 U. S. 338, 349, 10 Sup. Ct. 554, 33 L. Ed. 909; Davis v. Wakelee, 156 U. S. 680, 688, 15 Sup. Ct. 555, 39 L. Ed. 578; Brown v. Arnold, 67 C. C. A. 125, 129, 131 Fed. 723; Williams v. Neeley, 67 C. C. A. 171, 180, 134 Fed. 1, 69 L. R. A. 232; Big Six Development Co. v. Mitchell (C. C. A.) 138 Fed. 279, 284. The exigency of the case made by the amended bill is altogether un usual. Although actually terminated by the acts of the parties and no longer of any force or effect, the lease appears, as spread upon the public records, to be still effective as a disposal of all the oil and gas in the lessor’s lands. It embarrasses, if it does not prevent, the exercise of the right to make" }, { "docid": "7251284", "title": "", "text": "and received, but they may also be sued in equity for breach of trust, if they have failed to perform their duties as trustee. In Oelrichs v. Spain, 15 Wall. (82 U. S.) 211, 21 L. Ed. 43, the action was in equity to enforce liability for damages under injunction bonds. It was insisted that tlie complainant had a complete remedy at law, and that the bill should have been dismissed. In answering this objection the Supreme Court said: “Upon looking into the x-ecox'd It is clear to our niinds, not only that the remedy at law would not be as effectual as the remedy in equity, but we do not see that there is any effectual remedy at all at law. If the injunction bonds were sued upon at law, and judgments recovered, a proceeding in equity would still be necessary to settle the respective rights of the several obligees to the proceeds. The direct, proceeding in equity will save time, expense, and a multiplicity of suits, and settle finally the rights of all concerned in one litigation. Besides, thex-e is an element of trust in the case which, wherever it exists, always confers jurisdiction in equity.” In Wehrman v. Conklin, 155 U. S. 314, 15 Sup. Ct. 129, 39 L. Ed. 167, the bill was in equity to átüay an action in ejectment and to remove a cloud upon the plaintiff’s title, to certain real estate. It was contended by the defendant that equity had no jurisdiction of the case by reason of the fact that the controversy related to legal title only, and that the plaintiff had a plain, adequate, and complete remedy at law. The court, referring to section 723 of the Revised Statutes, said: “It was not intended to restrict the ancient jurisdiction of courts of equity, or to prohibit their exercise of a concurrent jurisdiction with courts of law in cases where such concurrent jurisdiction had been previously upheld.” ‘ In McKee v. Lamon, 159 U. S. 317, 322, 16 Sup. Ct. 11, 13 (40 L. Ed. 165), the court said: “There can be" }, { "docid": "14417436", "title": "", "text": "THACHER, District Judge. Since the original argument of this motion, the matter has been fully reargued and thoroughly presented upon written briefs. It appears from the .decision of the Circuit Court of Appeals for this circuit in Le Roy v. De Vry Corporation, 16 F.(2d) 18, to which no reference was made upon the oral argument, that the conclusion then reached that the motion should be denied was wrong. The complaint is the usual bill in equity for patent infringement. It was filed three days, and subpcena was served one day, before expiration of patent. Judge Hough, in his opinion in the Le Roy Case, supra, discusses the authorities holding that where special circumstances are shown, and in addition there is time between the filing of the bill and the expiration of the patent to obtain relief by temporary injunction, equity will retain jurisdiction, even though no injunction pending suit was granted, or even asked for. These authorities can have no application here, because the intervening time was too short (Clark v. Wooster, 119 U. S. 322, 7 S. Ct. 217, 30 L. Ed. 392), and it is entirely clear from Judge Hough’s opinion that this complaint cannot be sustained on the equity side of the court as a suit for an injunction. If sustainable at all, it must be as a suit for an accounting, maintainable only upon a showing of special circumstances calculated to induce belief that plaintiff’s remedy at law is not adequate. Sufficiency of allegation for this purpose is doubtful, in view of Judge Hough’s plain intimation that nothing short of what was shown in Tompkins v. International, etc., Co. (C. C. A.) 183 F. 773, and Tompkins v. St. Regis Paper Co. (C. C. A.) 236 F. 221, can sustain the jurisdiction. The point may be passed, however, and decision rested upon the more fundamental objection that, regardless of technical insufficiency of allegation, there can be no recovery, either at law or in equity, because of failure to allege compliance with section 4900 of the Revised Statutes (35 USCA § 49; Comp. St. § 9446);" }, { "docid": "23523242", "title": "", "text": "complainants in equity suits arising out of patents “to recover in addition to the profits to be accounted for by the defendant the damages the complaint has sustained” by the infringement, and there is no similar provision as to equity suits arising out of copyrights, it is sometimes said that damages cannot be awarded in the latter. We think this a misunderstanding of the statute. It applies to all patent causes without distinction and permits damages to be assessed when equitable relief is granted in addition to profits. This should not be construed to impair the power of courts of equity to do justice by al lowing the complainant compensation in damages where equitable relief, though it might be given, is for some satisfactory reason withheld. In such a case the damages are not given in addition to profits as provided by section 4921. It does not seem to us right to turn the complainant over to a court of law after over 5,000 pages of testimony have been taken in this cause, showing that its rights have been violated to some extent, especially considering that a jury trial would not furnish an adequate remedy in the sense of being adapted to determining the amount of the copying and paraphrasing. The bill asks for an injunction and for damages as well as for an accounting. This court, having obtained jurisdiction of the cause and having the power to grant an injunction, has the right to do justice between the parties and to dispose of it finally, even if this involves withholding injunctive relief and awarding damages. Masson’s Appeal, 70 Pa. 26; Valentine v. Richardt, 126 N. Y. 272, 27 N. E. 255; Waite v. O’Neil, 76 Fed. 408, 22 C. C. A. 248, 34 L. R. A. 550; Andrus v. Berkshire Power Co., 147 Fed. 76, 77 C. C. A. 248; New York City v. Pine, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820. The decree of the Circuit Court, therefore, will be modified by the direction to refer the cause to a master for the" }, { "docid": "2087744", "title": "", "text": "fit and reasonable.” By the act of July 4, 1836 (5 Stat. 117, c. 357), the remedies both at law and in equity were continued substantially as before and so remained until the passage of the consolidated patent act of July 8, 1870 (16 Stat. 198, c. 230). By the provisions of section 59 of that act, now section 4919 of the Revised Statutes [U. S. Comp. St. 1901, p. 3394], the damages recoverable in an action at law for the infringement'of a patent remained practically as before, namely, actual damages sustained as found by the verdict of the jury, with power in the court to increase the same not exceeding three times the amount of the verdict, according to the circumstances of the case; but by section 55 of the act, now section 4921 of the Revised Statutes [U. S. Comp. St. 1901, p. 3395], a change was made in the statutory provisions conferring jurisdiction upon the court in equity. Whereas by the acts of 1819 and 1836 general equitable jurisdiction in the language last ([noted was conferred upon the courts, by the act of 1870 that jurisdiction was enlarged or particularly specified as follows: The Circuit Courts “shall have power, upon Dill in equity filed by any party aggrieved, __to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by patent,'oil such terms as the court may deem reasonable; and upon a decree being rendered in any such case for an infringement, the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby, and the, court shall assess the same or cause the* same to be assessed under its direction, and Hie court, shall have the same powers to increase the same in its discretion Unit are given by this act to increase the damages found by verdicts in actions upon the case.” In this act is found for the first time a reference to profits made by an infringer as an" }, { "docid": "15320553", "title": "", "text": "or in any way or manner disposing of said lands adjudicated to him by said sheriff of Plaquemines parish, Louisiana, as aforesaid, and described in said deed from said sheriff to him, and from attempting to take possession of the same, and from doing, or causing to be done, any other thing which from the filing of this bill may, during the pending hereof, hinder or delay your orator from obtaining adequate relief in the premises, and that upon the hearing herein said preliminary injunction may be made perpetual.” The injunction was granted as prayed for. We learn from the opinion of the trial' judge, which is copied in the record, that the main, if not the only, objection made to the issuing of the writ of injunction was that section 720 of the Revised Statutes [U. S. Comp. St. 1901, p. 581] forbids the court from issuing the writ. That section provides that “the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of the state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” « A federal court, in a proper case, has jurisdiction to cancel titles made by authority of a decree of a state court, and this statute (section 720) does not deprive a federal court of jurisdiction to enjoin proceedings in a state court when such injunctive remedy is ancillary to granting relief in a case of which the federal court has jurisdiction. Terre Haute & I. R. Co. v. Peoria P. U. R. Co. (C. C.) 82 Fed. 943; Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870; Dietzsch v. Huidekoper, 103 U. S. 494, 26 L. Ed. 354. The bill is the only pleading in the case. No demurrer, plea, or answer has yet been filed. The case has been argued here elaborately, both orally and in the briefs filed, the argument being addressed to. the merits of the case. The question arises at once: To what extent" }, { "docid": "6085956", "title": "", "text": "in this court together. Inasmuch as the plaintiff has not manufactured or sold his patented tire, and has established no license therefor, the evidence asked for will be admissible to assist the jury in determining what will be a reasonable royalty, if they find the patent valid and infringed. Dowagiac Co. v. Minnesota Plow Co., 235 U. S. 641, 35 Sup. Ct. 221, 59 L. Ed. 398. Doubtless the plaintiff sued at law because his patent had expired, and no injunction could have been granted, under the general rule laid down in Root v. Railway Co., 105 U. S. 189, 26 L. Ed. 975, that a bill for a naked account of profits and damages against the infringer of a patent cannot be sustained. But at least since the decision in Carpenter v. Winn, 221 U. S. 533, 31 Sup. Ct. 683, 55 L. Ed. 842, an action at law cannot be regarded as adequate a remedy as a suit in equity, because it is difficult and inconvenient to go through a mass of books and papers produced for the first time at the trial. To exclude the jurisdiction of equity under section 267 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1163 [Comp. St. § 1244]), the remedy at law must be as complete and efficient, both as to final remedy and the mode of obtaining it, as the remedy in equity. Kilbourn v. Sunderland, 130 U. S. 514, 9 Sup. Ct. 594, 32 L. Ed. 1005. It may be, therefore, that this case fell within the exception to the general rule mentioned by Mr. Justice Matthews in Root v. Railway Co., 105 U. S. at page 215 (26 L. Ed. 975): “Our conclusion is tbat a bill in equity for a naked account of profits and damages against an infringer of a patent cannot be sustained; that such relief ordinarily is incidental to some othe'i equity, the right to enforce which secures to the patentee his standing in court; that the most general ground for equitable interposition is to insure to the patentee the" }, { "docid": "6085957", "title": "", "text": "and papers produced for the first time at the trial. To exclude the jurisdiction of equity under section 267 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1163 [Comp. St. § 1244]), the remedy at law must be as complete and efficient, both as to final remedy and the mode of obtaining it, as the remedy in equity. Kilbourn v. Sunderland, 130 U. S. 514, 9 Sup. Ct. 594, 32 L. Ed. 1005. It may be, therefore, that this case fell within the exception to the general rule mentioned by Mr. Justice Matthews in Root v. Railway Co., 105 U. S. at page 215 (26 L. Ed. 975): “Our conclusion is tbat a bill in equity for a naked account of profits and damages against an infringer of a patent cannot be sustained; that such relief ordinarily is incidental to some othe'i equity, the right to enforce which secures to the patentee his standing in court; that the most general ground for equitable interposition is to insure to the patentee the enjoyment of his specific right by injunction against a continuance of the infringement; but that grounds of equitable relief may arise, other than by way of injunction, as where the title of the complainant is equitable merely, or equitable interposition is necessary on account of the impediments which prevent a resort to remedies purely legal; and such an equity may arise out of, and inhere in, the nature of the account itself, springing from special and peculiar circumstances which disable the patentee from a recovery at law altogether, or render his remedy in a legal tribunal difficult, inadequate, and incomplete; and as such cases cannot be defined 'more exactly, each must rest upon its own particular circumstances, as furnishing a clear and satisfactory ground of exception from the general rule.” However, the plaintiff, having gone to law, and having applied to equity solely for discovery, without other relief, can have only such discovery as equity grants. While the inconvenience of the remedy at law may authorize a suit in equity, that fact cannot in any" }, { "docid": "14009195", "title": "", "text": "preliminary injunction was resisted on the sole ground that there was no equity in the bill, and that complainant’s only remedy was to proceed under said section 1766 of the Revised Statutes. The court granted a temporary injunction. The defendant has appealed to this court and raises the same question. Appellant’s counsel admits that on this appeal the facts alleged in the bill are to be taken as true. He contends: (1) That Revised Statutes, § 1766, provides the only remedy for the clerk. That this suit is in effect a suit against the United States, and that it has not consened to he sued. (2) That said section of the Revised Statutes provides a complete legal remedy. (3) That the bill should be dismissed, as being without equity. The first and second points can he discussed together. It is quite evident that section 1766, Revised Statutes, gives to the clerk no right to sue at law. It provides a right in him to require a report to be made to the Solicitor of the Treasury of the balance claimed to be due by him, and directs that officer within 60 days to order a suit to be brought \"against said delinquent and his sureties.” This is not a plain, adequate, and complete remedy at law given to the plaintiff. “The jurisdiction in equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity would confer under the same circumstances.” Kilbourn v. Sunderland, 130 U. S. 505, 514, 9 Sup. Ct. 594, 596 (32 L. Ed. 1005); Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 12, 19 Sup. Ct. 77, 43 L. Ed. 311. This is not a suit against the United States. It is a suit to restrain the United States marshal from refusing to perform a plain ministerial duty. He is required by law to pay to the clerk of the Circuit Court of Appeals his salary at the times fixed by law. The appropriation has been made by" }, { "docid": "23523241", "title": "", "text": "fall directly within the purpose for which they are sold, and to be fair. On the other hand, extensive copying or paraphrasing of the language of the syllabi would not, we think, be a fair use. The complainant knew at least as early as 1893 that its syllabi were being paraphrased or copied by the defendant’s writers, or some of them. Its conduct shows that it must have considered this to have been a fair use of its publications because it did not begin this action until the defendant, after 16 years of labor and immense outlay of money, had published almost its entire work. The laches of the complainant and the hardship upon the defendant are such that we think the trial judge, “according to the course and principles of courts of equity,” was right in refusing an injunction and accounting of profits. But we also think that the court can give damages in this case by way of compensation. Because Rev. St. U. S- § 4921 (U. S- Comp. St. p. 3395), entitles complainants in equity suits arising out of patents “to recover in addition to the profits to be accounted for by the defendant the damages the complaint has sustained” by the infringement, and there is no similar provision as to equity suits arising out of copyrights, it is sometimes said that damages cannot be awarded in the latter. We think this a misunderstanding of the statute. It applies to all patent causes without distinction and permits damages to be assessed when equitable relief is granted in addition to profits. This should not be construed to impair the power of courts of equity to do justice by al lowing the complainant compensation in damages where equitable relief, though it might be given, is for some satisfactory reason withheld. In such a case the damages are not given in addition to profits as provided by section 4921. It does not seem to us right to turn the complainant over to a court of law after over 5,000 pages of testimony have been taken in this cause, showing that" }, { "docid": "2087743", "title": "", "text": "(1 Stat. 109, c. 7), February 21, 1793 '(1 Stat. '31'8, c..ll), and Appl 17, 1800 (2 Stat. 37, c. 25) an action at law for damages was the only, remedy provided by statute for the violation of the exclusive rights of a patentee. By the act' of February 15, 1819= (3 Státl 481, c. 19), a remedy in equity was first given a statutory yvarrant. It was there' enacted thkt cir-cii-it courts shóiilcl have original cognizance as well -in equity as at law .of all controversies arising tinder the patent laws. -The.only reference to'the pbwers conferred upon the'court sitting in'equity was in the following language:- / . . “Upon any biil in equity filed by \"any party aggrieved in any such cases,” the Circuit Court “shall have authority to grant injunctions according to' the course and principles of courts of equity to prevent the violation of the rights of any author or inventor secured to them by any laws of the United States, on such terms and conditions' as the said courts may deem fit and reasonable.” By the act of July 4, 1836 (5 Stat. 117, c. 357), the remedies both at law and in equity were continued substantially as before and so remained until the passage of the consolidated patent act of July 8, 1870 (16 Stat. 198, c. 230). By the provisions of section 59 of that act, now section 4919 of the Revised Statutes [U. S. Comp. St. 1901, p. 3394], the damages recoverable in an action at law for the infringement'of a patent remained practically as before, namely, actual damages sustained as found by the verdict of the jury, with power in the court to increase the same not exceeding three times the amount of the verdict, according to the circumstances of the case; but by section 55 of the act, now section 4921 of the Revised Statutes [U. S. Comp. St. 1901, p. 3395], a change was made in the statutory provisions conferring jurisdiction upon the court in equity. Whereas by the acts of 1819 and 1836 general equitable jurisdiction in the language" }, { "docid": "7596283", "title": "", "text": "for which that corporation was established. Consequently, it is clear that the Delaware corporation has, by its dissolution and the assignment of all its assets, deprived itself of all power and opportunity to do any act in pursuance of, or for the purpose of, carrying out or executing the challenged contracts heretofore made by it, or to make any new contracts of a similar character, and that the grounds for granting the injunction originally sought against the Delaware corporation have been removed. But that fact or conclusion is not sufficient to warrant the further finding that the suit against it has become moot, that the court has been deprived of jurisdiction or should not retain jurisdiction to the end of the suit. For in a suit in which the pleadings disclose a proper ease for injunctive relief when the suit was instituted and a prayer for an injunction and incidental relief, the removal during the pend-ency of the suit of the grounds for injunctive relief does not take away the jurisdiction or bar the court from granting the incidental relief, if upon final hearing the allegations are sustained by proof. This principle is frequently applied in patent infringement suits in equity in which the right to injunctive relief set up in the bill of complaint, upon which right the equity jurisdiction rests, Root v. Railway Co., 105 U. S. 189, 26 L. Ed. 975, is destroyed during the pend-ency of the suit by the expiration, by its own limitations, of the patent sued upon. Clark v. Wooster, 119 U. S. 322, 325, 7 S. Ct. 217, 30 L. Ed. 392. The principle is particularly applicable in suits instituted in the public interest in which incidental relief in addition to that which gives the court jurisdiction is sought and the respondent destroys by his own act, during the pendency of the suit, the grounds upon which the right to the jurisdictional relief rests. In United States v. Trans-Mssouri Freight Association, 166 U. S. 290, 307-310, 17 S. Ct. 540, 546, 41 L. Ed. 1007, the freight association was alleged to be" }, { "docid": "8566390", "title": "", "text": "of equity upon certain conditions not recognized in the courts of equity of the United States. The question of jurisdiction in this case finds no warrant in any such statute in force in Arkansas. Undoubtedly there are certain rights created by state statutes which United States courts of equity can and do enforce, but state legislation cannot enlarge the jurisdiction of the United States courts in equity, if such legislation conflicts with the distinction strictly observed in the federal courts between law and equity. Adoue et al. v. Strahan et al., 97 Fed. 691, and cases there cited, afford examples of that character. ■ In that case this court said: “Counsel for the plaintiffs insist that the case of Rich v. Braxton, 158 U. S. 405, 15 Sup. Ct. 1006, 30 L. Ed. 1022, is authority in support of the bill. The court thinks not. In that case the precise question was not presented at all. Counsel also cite Holland v. Challen, 110 U. S. 15, 26, 3 Sup. Ct. 495, 28 L. Ed. 52, to the effect that United States courts of equity will respect state statutes enlarging equitable remedies. Unquestionably that is true, but it is subject to the limitation that rights created by state statutes will not be administered if they conflict with the distinction strictly observed in said courts between law and equity, or if they contravene section 723 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 583), which provides that suits in equity shall not be sustained in either of the courts of the ■ United States, where a plain, adequate, and complete remedy may be had at law, or if they violate the constitutional right of parties, in actions at law, of a trial by jury.” Nor are the decisions of state courts, if they were harmonious, necessarily decisive of the question to be considered. It may be conceded that there are state decisions sustaining this bill. They are not all in accord, as we shall see. Pomeroy, in his Equity Jurisprudence, §§ 268, 269, et seq. upholds" }, { "docid": "13452981", "title": "", "text": "methods to show that they were pecuniarily injured, and neither the master nor the court found that they suffered any damages. This contempt proceeding in no way affects any equitable remedy which the plaintiffs have or may have had to recover profits, and the case of Root v. Railway, 105 U. S. 189, 26 L. Ed. 975, does not controvert this proposition. That ease proceeds upon the theory that, in the absence of some recognized ground of equity jurisdiction, the owner of an expired patent cannot maintain a bill in equity for profits; that a bill “for naked'ae-count of profits” will not suffice. In' this respect the plaintiffs’ equitable remedy, if they have any, does not stand differently from what it would if this court had no jurisdiction to entertain the contempt proceeding and had dismissed it. In view of the conclusion we have reached, our previous order in this case is affirmed. ANDERSON, Circuit Judge (dissenting). Still asserting, on the facts in this ease, no continuing jurisdiction over this Michigan corporation, T now add that (assuming jurisdiction and violation of the injunction) I can see no reason why the profits derived from the alleged violation of the injunction are not recoverable; that at least they may be taken as a guide in assessing petitioner’s damages. Rights, under a previously obtained injunction, are at least as great as rights under a presently obtained injunction. Violation of such rights ought to have like remedy, both in nature and in extent. The patent owner, if now suing in equity for infringement, could of course recover the infringer’s profits. Rev. St. § 4921 (35 USCA § 70). But the present holding is that the persistent infringer, instead of being held, under Rev. St. § 4919 (35 USCA § 67), Hable for punitive damages (no damages whatever being shown), shall escape all aeeountabiHty for its profits, made as the result of its alleged contumacy. In Brown v. Lanyon, 148 F. 838 (C. C. A., 8th) it was held that an action at law cannot be maintained for the sole purpose of recovering an infringer’s" }, { "docid": "7596284", "title": "", "text": "from granting the incidental relief, if upon final hearing the allegations are sustained by proof. This principle is frequently applied in patent infringement suits in equity in which the right to injunctive relief set up in the bill of complaint, upon which right the equity jurisdiction rests, Root v. Railway Co., 105 U. S. 189, 26 L. Ed. 975, is destroyed during the pend-ency of the suit by the expiration, by its own limitations, of the patent sued upon. Clark v. Wooster, 119 U. S. 322, 325, 7 S. Ct. 217, 30 L. Ed. 392. The principle is particularly applicable in suits instituted in the public interest in which incidental relief in addition to that which gives the court jurisdiction is sought and the respondent destroys by his own act, during the pendency of the suit, the grounds upon which the right to the jurisdictional relief rests. In United States v. Trans-Mssouri Freight Association, 166 U. S. 290, 307-310, 17 S. Ct. 540, 546, 41 L. Ed. 1007, the freight association was alleged to be in violation of the Sherman Act. The relief sought was a decree that the agreement was invalid and an injunction. After the entry of the decree in the court below, the association was dissolved by vote of its members. In holding that the suit had not become moot, and that the appellate jurisdiction of the Supreme Court had not been ousted by the dissolution of the Association, that court said: “Private parties may settle their controversies at any time, and rights which a plaintiff may have had at the time of the commencement of the action may terminate before judgment is obtained or while the ease is on appeal, and in any such case the court, being informed of the facts, will proceed no further in the action. Here, however, there has been no extinguishment of the rights (whatever they are) of the public, the enforcement of which the government has endeavored to procure by a judgment of a court under the provisions of the act of congress above cited. The defendants cannot foreclose those" }, { "docid": "12899826", "title": "", "text": "Thannhauser (C. C.) 45 Fed. 730; Veazie. v. Williams, 8 How. 134, 12 L. Ed. 1018. In Tyler v. Savage, 143 U. S. 79, 12 Sup. Ct. 340, 36 L. Ed. 82, the court said in part: “Under section 723 of the Revised Statutes [U. S. Comp. St. 1901, p. 583], the remedy at law, in order to exclude equity, must he as practical and as efficient to the hands of justice and its prompt administration, as the remedy in equity.” The bill asks that the defendant be required to account to the complainant for bonds which are disposed of and secure the application of such payment to the satisfaction of such disposed of bonds as have not been paid. This could not be done in an action at law, and it would require the exercise of equity jurisdiction to grant this necessary relief. The bills, affirmatively show grounds of equitable jurisdiction. The bribery of the agent, the obtaining of the bonds, the trust relationships existing, all are grounds for relief in equity, and it is difficult to see how in any manner of action at law the complainant could be given a full, adequate, and complete remedy. It was said by the Supreme Court in the case of Angle v. C. & St. P. Ry., 151 U. S. 27, Í4 Sup. Ct. 250, 38 R. Ed. 55: “The forms and varieties of these trusts, which are termed ex maleficio or ex delicto, are practically without limit. The principle is applied where-ever it is necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrongdoer.”- In these cases the complainants have elected to bring equitable actions to rescind, and, under the authorities I have heretofore referred to, I am of the opinion that this suit was properly brought in the equity court. The Hawgoods occupied a trust relationship. They accepted a secret commission. Had this fraud been known, the parties would never have entered into the contracts. They never had the unbiased judgment of the Hawgoods, although it might well be" }, { "docid": "10855685", "title": "", "text": "the granting of a preliminary injunction need not be of the conclusive character claimed by the appellants must necessarily follow from the language that: “Where a preliminary injunction is allowed upon a prima facie showing, and without the determination of the merits, this court will ordinarily, on an appeal, consider only the question as to whether, on the prima facie ease made, there has been an abuse of discretion. * * * When the inconvenience to result is equally divided, or the preponderance is in favor of the defendant, it will be refused.” The rule declared in the Blount Case and now under consideration has been favored in patent cases by the Circuit Court of Appeals for the Ninth Circuit in Jensen v. Norton, 64 Fed. 662, 664, 12 C. C. A. 608, and Southern Pacific Co. v. Earl, 82 Fed. 690, 692, 27 C. C. A. 185. See, also, Irwin v. Dane, Fed. Cas. No. 7,081, 2 Biss. 442; High on Inj. (4th Ed.) § 935. In Parks v. Booth, 102 U. S. 96, 97, 26 L. Ed. 54, and Root v. Railway, 105 U. S. 189, 192, 193, 26 L. Ed. 975, the jurisdiction of the federal courts in patent cases and the remedies provided by statute for patentees for the invasion of their rights, but not the point now presented, were under consideration; but the language employed is suggestive of the soundness of Judge Jackson’s conclusions. While entertaining the highest respect for the decisions in which there is adherence to the rule urged by appellants, this court has committed itself to, and we are content to abide by, the doctrine announced in the Blount Case, which seems to us to accord with the plain and necessary import of the language of section 4921, R. S. (U. S. Comp. St. 1901, p. 3395), which confers on the appropriate courts the power to grant injunctions in patent cases “according to the course and principles of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may deem reasonable.” As regards" }, { "docid": "2087757", "title": "", "text": "639; City of Seattle v. McNamara, 26 C. C. A. 652, 81 Fed. 863; City of Boston v. Allen, 33 C. C. A. 485, 91 Fed. 248, 252. There is no merit in the contention that the conformity act of 1872 (Act June 1, 1872, c. 255, § 5, 17 Stat. 197; section 914, Rev. St. [U. S. Comp. St. 1901, p. 684]) entitles plaintiffs to the remedies existing by the statutes of Kansas, and that, because they have abolished the distinction between legal and equitable remedies, we should also d'o so, and award the plaintiffs that recovery which the facts in any form of action would warrant. Boyle v. Zacharie, 6 Pet. 647, 8 R. Ed. 527; Scott-v. Neely, 140 U. S. 106, 110, 11 Sup. Ct. 712, 35 R. Ed. 358. The embarrassment in which plaintiffs find themselves is to he regretted. They, by reason of the fact that the infringement complained of had ceased before this suit was instituted, were unable to invoke equitable relief by injunction and secure an accounting of profits incident to the main relief sought, and by reason of the rule laid down in Root v. Railway Co., 105 U. S. 189, 26 L. Ed. 975, that equity affords no relief to secure an accounting for profits made, disconnected with some other head of .equity jurisdiction, insist that unless this suit can be maintained they have a right without a remedy —a condition which is abhorrent and intolerable in the eye of the law. The fault is unfortunately theirs. They should have proceeded while the infringement was in progress, and secured their injunctive relief, and with it their desired accounting. Many a suitor has by laches or by the operation of statutes of limitation lost a remedy for the enforcement of his right. However that may be, the law of this case, in our opinion, is against the plaintiffs. The judgment below dismissing their action was correct, and it is accordingly affirmed." }, { "docid": "13452982", "title": "", "text": "that (assuming jurisdiction and violation of the injunction) I can see no reason why the profits derived from the alleged violation of the injunction are not recoverable; that at least they may be taken as a guide in assessing petitioner’s damages. Rights, under a previously obtained injunction, are at least as great as rights under a presently obtained injunction. Violation of such rights ought to have like remedy, both in nature and in extent. The patent owner, if now suing in equity for infringement, could of course recover the infringer’s profits. Rev. St. § 4921 (35 USCA § 70). But the present holding is that the persistent infringer, instead of being held, under Rev. St. § 4919 (35 USCA § 67), Hable for punitive damages (no damages whatever being shown), shall escape all aeeountabiHty for its profits, made as the result of its alleged contumacy. In Brown v. Lanyon, 148 F. 838 (C. C. A., 8th) it was held that an action at law cannot be maintained for the sole purpose of recovering an infringer’s profits. Compare Walker Patents (5th Ed.) § 555. In Root v. Railway, 105 U. S. 189, 26 L. Ed. 975, it was held that the owner of an expired patent could not maintain a bill in equity solely for an account of profits and damages against an infringer during the life of the patent; that his only remedy was at law. Compare Tilgh-man v. Proctor, 125 U. S. 136, 148, 8 S. Ct. 894, 31 L. Ed. 664. The present decision apparently leaves this appellant without any remedy, either at law or in equity, to obtain its just rights. None of the cases cited and reviewed in the majority opinion seems to me to support the conclusion. The proceedings are purely remedial. I think the appellant entitled to full relief." } ]

[ { "docid": "22800371", "title": "", "text": "well-founded fear of future persecution if returned to her prior country of residence based on “race, religion, nationality, membership in a particular social group, or political opinion.” Kayembe’s claim of refugee status is based on a fear of future persecution derived from his alleged Tutsi ethnicity and the imputation to him of anti-government political opinions via his father’s association with the diamond industry in the DRC. See Balasubramanrim v. INS, 143 F.3d 157, 165 n. 10 (3d Cir.1998) (noting that a well-founded fear of persecution may be based on political opinions correctly or incorrectly imputed to the asylum seeker). Whether or not Kayembe has demonstrated past persecution or a well-founded fear of future persecution is a factual question that we review under the substantial evidence standard. Chen Yun Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). We will uphold the findings of the BIA to the extent that they are supported by reasonable, substantial and probative evidence on the record considered as a whole, and will reverse those findings only if there is evidence so compelling that no reasonable factfinder could conclude as the BIA did. Id. Our power of review, however, extends only to the decision of the BIA. Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). Therefore, only if the BIA expressly adopts or defers to a finding of the IJ, will we review the decision of the IJ. Id. This principle is relevant here because the BIA made no finding on the issue of Kayembe’s credibility. Although the BIA noted that the “Immigration Judge denied the respondent’s claim find ing that he was not credible,” Administrative Record (A.R.) at 2, the BIA made no comment of its own regarding Kayembe’s credibility. Nor did the BIA adopt or defer to the IJ’s finding on the issue of credibility. We are left, therefore, with no credibility finding to review. III. For the purposes of our review the credibility of Kayembe has not been determined. As a practical matter, therefore, we must proceed as if Kayembe’s testimony were credible and determine whether the BIA’s decision is supported by" } ]

[ { "docid": "22712049", "title": "", "text": "the Fa-lungong belief and activity is a religious, and/or political view, and persecution on account of it is persecution on account of one’s religious or political views.” [A.R. 42], Gao, in her testimony, clarified that she was not practicing Falun Gong, but acting as a messenger and it was that association that puts in her in danger. The IJ stated that if a person were actually tortured for being a messenger, “the Court believes that that would constitute persecution.” [A.R. 44]. The question then became whether Gao’s testimony “regarding the treatment that she suffered is plausible, sufficiently detailed, and credible to allow us to conclude that she was in fact persecuted for these few activities.” [/</]. The IJ found that Gao lacked credibility. Most importantly, without any evidence to support this conclusion, the IJ stated that he found “implausible ... the preoccupation of Chinese authorities for someone who is a mere adjunct to the activity that the government is trying to stop or prevent, but that is not at all involved in it herself.” He therefore denied her claim of asylum. II. STANDARD OF REVIEW We begin by noting that we have the power to review only the final order of removal. 8 U.S.C. § 1252(a)(1). Ordinarily, Courts of Appeals review decisions of the Board of Immigration Appeals (BIA), and not those of an IJ. When the BIA does not render its own opinion, however, and either defers or adopts the opinion of the IJ, a Court of Appeals must then review the decision of the IJ. Abdulai v. Ashcroft, 239 F.3d 542, 549 n. 2 (3d Cir.2001) (“When the BIA defers to an IJ, a reviewing court must, as a matter of logic, review the IJ’s decision to assess whether the BIA’s decision to defer was appropriate.”) In addition, the scope of our review is extremely narrow: The Attorney General has been “charged with the administration and enforcement” of the INA, and Congress has provided that his “determinations and rulings ... with respect to all questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1). Because of this delegation," }, { "docid": "8289074", "title": "", "text": "made the threatening phone calls or sent the threatening letters and that he could not identify the source of the threats, but he stated that he was sure that it was “a political issue.” After hearing Cubillos’s testimony, the IJ found him credible. The IJ also found that the documents provided by Cubillos corroborated his testimony. The IJ determined that Cubillos had established past persecution based on his membership in the Radical Change Party. The IJ noted that Cubillos had sought protection but that the government was unable or unwilling to protect him. The IJ concluded that Cubillos established past persecution and that the government failed to rebut the presumption of future persecution. Based on these findings, the IJ granted Cubillos’s application for asylum. The IJ did not reach Cubillos’s applications for withholding of removal and CAT relief. DHS appealed, and the BIA vacated the IJ’s decision. The BIA held that, despite credible testimony, the two anonymous phone calls and two anonymous letters did not amount to past persecution because Cubillos did not have physical contact with the individuals and the correspondence did not include explicit threats against him. Moreover, the BIA held that Cubillos did not show a well-founded fear of persecution on account of a protected ground. The BIA also denied Cubillos’s applications for withholding of removal and CAT relief. This petition followed. II. Discussion On appeal, Cubillos challenges the BIA’s denial of his asylum claim, withholding of removal, and CAT claims. Cubillos also challenges the BIA’s scope of review. We will affirm the BIA’s decision if “substantial evidence on the administrative record” supports that decision. De Brenner v. Ashcroft, 388 F.3d 629, 636 (8th Cir.2004) (internal quotations and citations omitted). And we will not overturn that decision “unless the evidence is so compelling that no reasonable fact finder could fail to find the requisite fear of persecution.” Id. (internal quotations and citations omitted). The BIA’s legal conclusions are reviewed de novo, but we grant deference to the BIA in interpreting “ambiguous statutory terms if the interpretation is reasonable and consistent with the statute.” Id. (internal quotations and" }, { "docid": "22386926", "title": "", "text": "the progress that has been made so that the international presence is being withdrawn and so forth, so that under such case law as Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995 (9th Cir.2003), the objective component of the claim can no longer be established. AR 42. The IJ’s findings regarding the changes in Sierra Leone were based on a 2005 U.S. Department of State Country Report. The IJ denied Sowe’s application for asylum, withholding of removal, and protection under CAT. The IJ also noted that Sowe was ineligible for voluntary departure. Sowe filed a timely appeal with the BIA challenging the IJ’s decision. II The BIA dismissed the appeal based on the IJ’s alternative holding that, even if Sowe’s testimony were deemed credible and demonstrated past persecution, the presumption of future persecution was rebutted by the evidence in the record reflecting a change in country conditions. It stated: We do not find the harm that the respondent claims to have suffered, that of being detained and beaten by the RUF, to be sufficiently compelling to support a grant of asylum in the absence of a well-founded fear of future persecution (see Matter of Chen, 20 I & N Dec. 16 (BIA 1989)); nor do we find there to be a reasonable possibility that the respondent may suffer other serious harm upon removal to Sierra Leone. See 8 C.F.R. §§ 1208.13(b)(1)(iii)(A), (B). AR 3. The BIA did not review the IJ’s adverse credibility findings. It stated: “We need not reach the issue whether the adverse credibility determination was correct.” Id. The BIA concluded that Sowe had failed to establish his eligibility for asylum and withholding of removal. It also determined that Sowe had failed to demonstrate that if removed to Sierra Leone, he would more likely than not be tortured, as required for relief under CAT. Sowe’s timely petition for review was filed on June 7, 2006. Ill “The BIA’s decision that an alien has not established eligibility for asylum is reviewed for substantial evidence.” Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir.2007). “We review the IJ’s factual findings regarding changed" }, { "docid": "22385204", "title": "", "text": "that term has been defined in the case law if she were to return to Indonesia, absent a conclusion by either the BIA or the Circuit Court that such a pattern or practice conclusion would be supported by substantial evidence in this record.” A.R. 109. On December 2, 2004, the IJ denied Wong’s petition for asylum, withholding of removal, and relief under the CAT, but granted her voluntary departure. Wong again appealed, and the BIA dismissed Wong’s case on June 28, 2006. The BIA determined that Wong had failed to establish a pattern or practice of persecution of ethnic Chinese Christians in Indonesia and noted that the grant of asylum to Wong’s husband was not dispositive of her asylum claim. The BIA observed that the U.S. State Department’s 2003 and 2004 International Religious Freedom Reports for Indonesia (Religious Freedom Reports) indicated that the government had taken steps to control anti-Christian violence, and that violence continued only in specific parts of Indonesia. Similarly, while the U.S. State Department’s 2003 and 2004 Country Reports on Human Rights Practices for Indonesia (Country Reports) documented ongoing harassment and discrimination against ethnic Chinese in Indonesia, the reports indicated that violence had ended. The BIA also determined that Wong was not eligible for withholding of removal or relief under the CAT. This timely petition for review followed. II. We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007). Removal proceedings occurred in Philadelphia, Pennsylvania, and venue is therefore proper under 8 U.S.C. § 1252(b)(2). Where the BIA renders its own decision and does not merely adopt the opinion of the IJ, we review the BIA’s decision, not that of the IJ. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). The BIA is bound by the IJ’s factual determinations “including findings as to the credibility of testimony” and reviews these findings only to determine whether they are clearly erroneous. 8 C.F.R. § 1003.1(d)(3). “The BIA’s conclusions regarding evidence of past persecution and the well-founded fear of persecution are findings of" }, { "docid": "4781844", "title": "", "text": "of the hearing, the IJ ruled from the bench. The IJ found the petitioner’s testimony generally credible but concluded that the evidence failed to satisfy the petitioner’s burden of proof. Specifically, the IJ found that the petitioner had not provided significantly probative evidence that either he or his family members had been targeted for persecution because of their ethnic minority status and, therefore, that the petitioner had failed to establish a nexus between the past harm that he had described and a statutorily protected ground. Similarly, the IJ found that the petitioner had not established that, more likely than not, he would be persecuted in the future should he return to Guatemala. These findings culminated in a denial of the petitioner’s cross-application for withholding of removal. As an alternative ground for denying relief, the IJ held that even if a nexus existed between the harm and a statutorily protected ground, the end of the civil war in 1996 marked a fundamental change in circumstances. That shift made it unlikely that the petitioner would be persecuted upon his return to Guatemala and, thus, counseled persuasively against withholding of removal. The petitioner administratively appealed this decision. The BIA affirmed without opinion. This timely petition for judicial review followed. On a petition for judicial review in an immigration case, we ordinarily focus on the opinion of the BIA. But when, as now, the BIA has not written its own rescript but, rather, has deferred to the IJ’s decision, we review the latter decision directly. Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir.2004). In conducting that tamisage, we review findings of fact (including credibility determinations) under the deferential “substantial evidence” standard. Id. Accordingly, we must leave those findings undisturbed as long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005). We will reverse only if the record is such as would “compel a reasonable factfinder to reach a contrary determination.” Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir.2008). Abstract legal determinations are afforded de novo" }, { "docid": "19750054", "title": "", "text": "PER CURIAM. Sara Kassa Kebede entered the United States on an Ethiopian passport in July 2001 and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) on behalf of herself and her son, Michael Tesfaye Yig-ezu. After an evidentiary hearing, the Immigration Judge (IJ) denied all relief, finding that Kebede’s testimony as to past persecution by the Ethiopian government was not credible and, even if credible, did not establish either past persecution or a well-founded fear of future persecution if she and her son are removed to Ethiopia. The Board of Immigration Appeals (BIA) assumed without deciding that Kebede’s testimony was credible and affirmed the IJ’s decision on the merits. Petitioners seek judicial review of the BIA’s final agency action. We deny the petition for review. Petitioners first argue the BIA committed reversible error when it failed to review the IJ’s adverse credibility find ing. We review the BIA’s final agency action, not alternative rulings of the IJ that were not reviewed by the BIA nor necessary to its decision. See Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir.2006). Occasionally, the BIA’s failure to address a disputed credibility issue will leave us unable to discern the BIA’s analysis, as in El-Sheikh v. Ashcroft, 388 F.3d 643, 648 (8th Cir.2004). Then, of course, we must remand. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). But here, the BIA assumed petitioners’ testimony was credible in finding insufficient proof of past persecution or a well-founded fear of future persecution. Therefore, we review only the BIA’s persecution analysis. Petitioners next argue that Kebede presented sufficient credible, corroborated, detailed evidence of past persecution and a well-founded fear of future persecution. We review the BIA’s contrary findings under the substantial evidence standard, upholding the agency’s decision unless the evidence “was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Kebede testified that, beginning in 1997, she supported an opposition political party, the All-Amhara" }, { "docid": "23252123", "title": "", "text": "In this case, the BIA agreed with several of the IJ’s findings but did not adopt all of them. Accordingly, we may affirm the BIA’s decision only if we find that its stated reasons are correct, as it was the BIA — not the IJ — that provided the final and authoritative “grounds invoked by the agency.” SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); Li v. Att’y Gen., 400 F.3d 157, 163 (3d Cir.2005) (reviewing only BIA’s finding that “assuming [petitioner] was credible, he failed to establish past persecution,” not IJ’s adverse credibility determination, because BIA did not adopt credibility finding); cf. Dia v. Ashcroft, 353 F.3d 228, 241 (3d Cir.2003) (holding that under Chenery, when the BIA affirms the IJ without opinion, we review the IJ’s opinion as “the grounds invoked by the agency”). D 1 With the aforementioned standards in mind, we turn to Silvia’s petition for review. We begin by noting that Silvia did not argue in her opening brief that the BIA erred in denying her CAT claim, so that issue is waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005) (citing Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir.1993) (“When an issue is either not set forth in the statement of issues presented or not pursued in the argument section of the brief, the appellant has abandoned and waived that issue on appeal.”)). Thus we review only Silvia’s requests for asylum and withholding of removal. Whereas an application for withholding of removal requires a showing that there is a “clear probability” of persecution in the country to which an applicant will be removed, Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.2005) (citing 8 U.S.C. § 1231(b)(3)(A)), an application for asylum must establish only that the applicant is “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social" }, { "docid": "23365481", "title": "", "text": "for discrediting an asylum applicant. Forgue v. U.S. Att’y Gen., 410 F.3d 1282, 1287 (11th Cir.2005). Where the BIA issues its own opinion, but expressly adopts the IJ’s reasoning, we review both the BIA’s and the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). Here, because the BIA expressly adopted the IJ’s decision “to the extent it was based upon an adverse credibility finding,” we review both the BIA’s and the IJ’s reasoning concerning the adverse credibility finding and its effect on Shkambi’s claims. In Shkambi’s case, the BIA and the IJ gave specific, cogent reasons for finding Shkambi not credible and for concluding that he was ineligible for asylum and withholding of removal. In support of the adverse credibility finding, both the BIA and the IJ pointed to material omissions and inconsistencies among Shkam-bi’s hearing testimony and his two previous statements to immigration officers. Furthermore, the IJ offered reasonable explanations for why she found Shkambi’s explanation for the omissions and inconsistencies implausible. Contrary to Shkam-bi’s claims, there was nothing conclusory or summary about the BIA’s consideration of the IJ’s adverse credibility finding. Instead, the BIA carefully reviewed the omissions and inconsistencies highlighted by the IJ. This reasoned discussion of Shkambi’s credibility is sufficient to allow for meaningful appellate review of that finding. B. Adverse Credibility Finding Shkambi argues that the IJ’s adverse credibility finding, adopted and affirmed by the BIA, is not supported by substantial evidence. An asylum applicant has the burden to show, with specific and credible evidence, either past persecution or a well-founded fear of future persecution on a protected ground. Forgue, 401 F.3d at 1286-87. If the IJ finds an asylum applicant not credible, the IJ must make an explicit adverse credibility finding and offer “specific, cogent reasons” for the finding. Id. “Indications of reliable testimony include consistency on direct examination, consistency with the written application, and the absence of embellishments.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir.2006). “Once an adverse credibility finding is made, the burden is on the applicant alien to show that the IJ’s credibility" }, { "docid": "22907647", "title": "", "text": "IJ found him not to be a credible witness. The IJ also held that Hanna had not shown evidence of persecution, and asserted that there was no longer a viable threat against Hanna because Saddam Hussein and the Ba’ath party were no longer in power. The IJ held that Hanna did not qualify for withholding of removal or for CAT relief. The BIA affirmed the IJ’s decision on July 23, 2004. The BIA “assumed arguen-do” that Hanna suffered past persecution, but held that Hanna no longer had a well-founded fear of persecution because coalition forces had taken control of Iraq. The BIA also held that Hanna failed to establish that “any persecution he may have suffered compels a grant of asylum as a matter of humanitarian concerns.” The BIA upheld, without comment, the IJ’s decision regarding withholding and CAT relief. The BIA did not directly address Hanna’s credibility. II. Standard of Review The BIA’s decision that an alien has not established eligibility for asylum is reviewed for substantial evidence. Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.2006). The BIA’s determination must be upheld if supported by reasonable, substantial, and probative evidence in the record. Lopez v. Ashcroft, 366 F.3d 799, 802 (9th Cir.2004). We also review factual findings underlying the denial of asylum for substantial evidence. Li v. Ashcroft, 356 F.3d 1153, 1157 (9th Cir.2004) (en banc). The Immigration and Nationality Act explains that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). III. Adverse Credibility The IJ made an adverse credibility finding regarding Hanna. The BIA, however, did not mention this finding in its opinion. Instead the BIA assumed, without deciding, that Hanna suffered past persecution. That assumption necessarily carried with it the assumption, again without deciding, that Hanna was credible. Thus, because the BIA has expressly declined to address Hanna’s credibility, we do not decide that issue here in the first instance. See Damaize-Job v. I.N.S., 787 F.2d 1332, 1338 (9th Cir.1986) (noting that “[i]t is our practice to remand to the Board for" }, { "docid": "23021539", "title": "", "text": "not a credible witness, (2) he had not established past persecution in Algeria necessary for entitlement to asylum relief, (3) he had failed to show that he had a well-founded fear of persecution should he be removed to Algeria, (4) he could not meet the higher burden for withholding of removal since he had not met his burden for eligibility for asylum, and (5) he had not met his burden of demonstrating that it is more likely than not he would be subjected to torture if he returned to Algeria, as required for relief under the CAT. On appeal, the BIA generally adopted the IJ’s findings of fact and conclusions of law, noting the guidelines for determining credibility as set forth in the REAL ID Act of 2005, and finding no clear error in the IJ’s adverse credibility determination. The BIA agreed that, even accepting as credible Allalen’s testimony, Allalen had failed to show that the incidents he experienced equated to past persecution, or that he had a well-founded fear of persecution based on those incidents. The BIA rejected Allalen’s argument that the IJ’s questioning, tone, or comments denied him a fair hearing and due process. Lastly, the BIA affirmed the denial of withholding of removal and relief under the CAT. Allalen petitioned this court for review of the denial of asylum. He has failed to challenge, on appeal, the IJ’s and the BIA’s determinations that he was not entitled to withholding of removal or relief under the CAT. Therefore, these grounds for relief have been abandoned and we will not address them. Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir.2006). B. Jurisdiction and Standard of Review We have jurisdiction over the petitioner’s request for asylum pursuant to 8 U.S.C. § 1252(a)(1). This court has jurisdiction to review the final decision of the BIA “affirming the IJ’s denial of asylum.” Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir.2005). Generally, this court reviews the BIA’s decision to determine whether it is supported by substantial evidence. Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir.2005). Where the Board adopts the" }, { "docid": "23273291", "title": "", "text": "At that time, the petitioner presented general evidence in the form of experts’ reports on nationalism, human rights, antisemitism, and political censorship in the Ukraine. The petitioner testified to the facts set forth above. In considering a petitioner's claim for withholding of removal, the IJ must determine credibility in the same manner as in asylum cases. See 8 U.S.C. § 1231(b)(3)(C); 8 U.S.C. § 1158(b)(l)(B)(ii)-(iii). When discussing this petitioner’s credibility, the IJ stated “[t]he cross examination of the [petitioner] did not reveal anything material or pertinent enough that would lead me to conclude that [he was] an incredible witness. I do believe he was consistent with his application.” The IJ found, however, that his testimony was not sufficiently detailed and that there was no corroborative evidence to support the testimony. Therefore, the IJ held that the petitioner had not established that he had been subject to past persecution. In light of this finding, the IJ concluded that the petitioner failed to establish that it was more likely than not that he would be subject to future persecution, based upon a protected ground, if removed to the Ukraine. Thus, the IJ denied the petitioner’s application for withholding of removal. On appeal, the BIA concluded there was no reversible error in the IJ’s decision and summarily dismissed the petitioner’s case. This appeal followed. STANDARD OF REVIEW There is one issue on appeal before this Court: I. Whether the BIA and IJ erred when they found the petitioner did not suffer past persecution. “When the BIA issues a decision, we review the BIA’s decision, except to the extent that the BIA has expressly adopted the IJ’s decision.” Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir.2007) (citing Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001)). “In that instance, we review the IJ’s decision as well.” Id. If the BIA’s decision is supported by reasonable, substantial, and probative evidence when the record is considered as a whole, this Court must affirm. Ruiz, 479 F.3d at 765. “To conclude that the BIA’s decision should be reversed, we must find that the record not" }, { "docid": "22385205", "title": "", "text": "Practices for Indonesia (Country Reports) documented ongoing harassment and discrimination against ethnic Chinese in Indonesia, the reports indicated that violence had ended. The BIA also determined that Wong was not eligible for withholding of removal or relief under the CAT. This timely petition for review followed. II. We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007). Removal proceedings occurred in Philadelphia, Pennsylvania, and venue is therefore proper under 8 U.S.C. § 1252(b)(2). Where the BIA renders its own decision and does not merely adopt the opinion of the IJ, we review the BIA’s decision, not that of the IJ. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). The BIA is bound by the IJ’s factual determinations “including findings as to the credibility of testimony” and reviews these findings only to determine whether they are clearly erroneous. 8 C.F.R. § 1003.1(d)(3). “The BIA’s conclusions regarding evidence of past persecution and the well-founded fear of persecution are findings of fact,” which we review under the deferential substantial evidence standard. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We defer to the BIA’s findings “if they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Lie v. Ashcroft, 396 F.3d 530, 534 n. 3 (3d Cir.2005) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Under the deferential substantial evidence standard, the BIA’s findings “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001) (citing Elias-Zacarias, 502 U.S. at 481 & n. 1, 112 S.Ct. 812); see 8 U.S.C. § 1252(b)(4)(B) (‘‘[Ajdministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary-”). In addition, where, as here, “the IJ did not make an adverse credibility determination [ ], we proceed as if the alien’s testimony was credible.” Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 350 (3d Cir.2006). We have plenary" }, { "docid": "22393342", "title": "", "text": "Ashcroft, 376 F.3d 215, 221-22 (3d Cir.2004) (where BIA’s opinion listed flaws in applicant’s testimony, and stated that “for those reasons and others cited in the Immigration Judge’s decision, the Immigration Judge correctly denied the respondent’s application,” court would review both decisions) (emphasis added); Xie v. Ashcroft, 359 F.3d 239, 242, 246 n. 9 (3d Cir.2004) (reviewing both decisions where BIA stated that it was giving “significant weight” to IJ’s adverse credibility finding, and disclaiming reliance on IJ’s “demeanor” analysis where applicant’s demeanor was not referenced in BIA opinion); Miah, 346 F.3d at 439 (explaining need to review both decisions where BIA rejected IJ’s adverse credibility finding, and explicitly adopted IJ’s corroboration analysis, noting that issues were intertwined because IJ’s credibility findings influenced IJ’s views concerning necessity of corroboration). In sum, the cases in which we have reviewed both decisions have all involved situations in which the language of the BIA’s opinion directly states that the BIA is deferring to the IJ, or invokes specific aspects of the IJ’s analysis and factfinding in support of the BIA’s conclusions. Here, in contrast, the BIA expressed disagreement with the IJ’s adverse credibility finding, and did not specifically reference or adopt other portions of the IJ’s analysis. In agreeing with the decision reached by the IJ, the BIA stated that it was doing so “based upon and for the reasons set forth herein.” Al:2 (emphasis added). In this situation, we must restrict our review to the question of whether the underlying record provides substantial evidence for the BIA’s conclusions. As discussed below, we cannot rescue the BIA from its paucity of analysis by injecting issues that were raised by the IJ, but were neither addressed nor relied upon in the BIA’s opinion. III. ANALYSIS An asylum applicant must demonstrate either past persecution or a well-founded fear of future persecution. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). In order to establish eligibility on the basis of past persecution, an applicant must show: “(1) an incident, or incidents, that rise to the level of persecution; (2) that is on account of a" }, { "docid": "11179095", "title": "", "text": "special police force would seem to constitute past persecution based on imputed political opinion. Thus, the BIA could not have found that Kadia failed to show persecution on account of a protected ground without at least implicitly adopting the IJ’s finding that she was not entirely credible. The Attorney General’s supplemental authority asserts that inasmuch as the BIA did not expressly reject the IJ’s adverse credibility finding, it adopted that finding. But this suggests that the BIA didn’t mean what it said when it stated that it need not address the IJ’s credibility finding. We hesitate to find that the BIA did that which it expressly said it declined to do. The First Circuit considered a similar situation in Halo v. Gonzales, 419 F.3d 15 (1st Cir.2005), where the IJ denied Halo’s claims for asylum, withholding of removal and relief under CAT on the ground that Halo was not credible. The BIA affirmed. Though the BIA noted the IJ’s credibility finding, it did not adopt it. Instead, the BIA assumed that Halo was credible and found, without explanation, that he had not shown persecution on account of his political opinion or any other protected ground. Id. at 16. The court stated that assuming Halo’s testimony was true, it was unclear why he had not shown past persecution on account of his political opinion. Id. at 19. The court therefore vacated and remanded to the BIA for clarification of the reasons for its conclusion. Id. at 19-20. And so it is here. The BIA said that it need not address the IJ’s adverse credibility finding, but concluded, without explanation, that Kadia failed to establish persecution on account of a protected ground. We cannot affirm the BIA if the basis for its decision is unclear. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (“If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable.”); Gebreeyesus v. Gonzales, 482 F.3d 952, 955-56 (7th Cir.2007) (remanding where" }, { "docid": "22755848", "title": "", "text": "denial of Li’s claim, the BIA noted that Li had “identified some error” in the IJ’s credibility finding and failure to consider documentary evidence. The BIA, however, did not make any credibility findings .of its own. Thus, we are left only with the BIA’s conclusion that, assuming Li was credible, he failed to establish past persecution as the basis for the BIA’s denial of Li’s past persecution claim. This rationale is all that we may review. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) (“[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative decision by substituting what it considers to be a more adequate or proper basis.”); Ernesto Navas v. INS, 217 F.3d 646, 658 n. 16 (9th Cir.2000) (“[T]his court cannot affirm the BIA on a ground upon which it did not rely.”). In Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003), we held that where the BIA makes no findings on the credibility issue, “we must proceed as if [petitioner’s] testimony were credible and determine .whether the BIA’s decision is supported by substantial evidence in the face of the assumed (but not determined) credibility.” In Kayembe, the IJ relied on an adverse credibility determination to deny the petitioner’s claim, but the BIA rested its affir-mance on other grounds, without making a Credibility determination. Aso instructive is Briones v. INS, 175 F.3d 727 (9th Cir.1999) (en banc), where the BIA had taken note of the IJ’s adverse credibility determination, but declined to address it, because the BIA found that Briones’s testimony, even if it-was credible, did not es tablish a well-founded fear of persecution. 175 F.3d at 728. Yet the Ninth Circuit, sitting en banc, analyzed the facts as- alleged by the petitioner and found that the allegations were of a “compelling nature” such that, “if trustworthy,” they would make" }, { "docid": "22229298", "title": "", "text": "stated that what Singh and his family suffered in Fiji was harassment and discrimination that did not amount to persecution because this sort of treatment was suffered by a “majority of the Indian population remaining in Fiji.” On October 31, 1994, the BIA dismissed Singh’s appeal and ordered voluntary departure. The BIA agreed with the IJ that any harassment and discrimination suffered by Singh and his family did not constitute persecution because Singh “failed to establish that anyone in Fiji was interested in him.” The BIA also stated that the treatment Singh suffered did not “constitute[ ] a specific individualized threat.” II We have held that where the IJ expressly finds certain testimony to be credible, and where the BIA makes no contrary finding, we “accept as undisputed” the testimony given at the hearing before the IJ. Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995). In this case, the BIA failed to make an express finding concerning Singh’s credibility. We, therefore, look to the IJ’s decision to determine whether the IJ made an express finding on credibility. The IJ expressly found Singh’s testimony to be credible and consistent and stated that each member of the Singh family “earnestly believes he/she will be persecuted.” The IJ’s finding was not contradicted by the BIA. In fact, the BIA stated in its opinion that Singh’s testimony at the hearing was consistent with the information contained in the asylum application and was corroborated by his wife’s and daughter’s testimony. Thus, in resolving this appeal, we take as true all the facts as testified to by Singh and his family. The record before the IJ and the BIA also contains (a) evidence of anti-Indian discrimination, harassment, and violence in Fyi, and (b) evidence of particularized persecution that Singh and his family suffered in Fiji. We summarize this evidence below. A Fiji’s population is about evenly divided between ethnic Fijians and Indo-Fijians. Before 1987, Fiji’s constitution established a “delicate balance” in favor of ethnic Fijians but guaranteed equal political participation to all groups. In two coups d’etat that occurred in May and July 1987, the" }, { "docid": "22664598", "title": "", "text": "case on the assumption, contrary to the IJ’s finding, that Chen’s testimony was credible. Accordingly, we review the decision of the BIA. See Yahong Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir.2005) (reviewing decision of the BIA in similar circumstances). In this posture, we may not rest our holding on the IJ’s credibility findings, because the BIA did not affirm and adopt those findings. See Jin Yu Lin v. DOJ, 413 F.3d 188, 191 n.4 (2d Cir.2005) (“Because the BIA did not affirm [the IJ’s alternative holding that the petitioner was ineligible for asylum], however, and instead relied on the IJ’s adverse credibility determination, th[e former] aspect of the IJ’s decision does not constitute grounds for vacatur or reversal.”); Kayembe, 334 F.3d at 235 (holding that where the BIA did not adopt or defer to the IJ’s finding on credibility, we “must proceed as if [the petitioner’s] testimony were credible and determine whether the BIA’s decision is supported by substantial evidence in the face of his assumed (but not determined) credibility”); Gonzalez v. INS, 77 F.3d 1015, 1023 (7th Cir.1996) (“Since the BIA did not adopt any of the immigration judge’s reasoning in this case, [the petitioner’s] challenge to his assessment of her credibility is irrelevant to our review of the BIA decision and barred on appeal.”). In reviewing the decision of the BIA, we assume, but do not determine, Chen’s credi bility as to his testimony concerning the events of his past and as to his subjective fear of future persecution. We find significant error in the BIA’s failure to consider the country condition report submitted by Chen, which corroborates his testimony concerning his subjective fear of future persecution based on his religion, which we assume to be credible. The BIA, when considering an appeal, “must actually consider the evidence and argument that a party presents.” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001) (internal quotation marks omitted); see also Mohideen v. Gonzales, 416 F.3d 567, 571, 2005 WL 1691597, at *4 (7th Cir. July 21, 2005) (“Although the BIA may have some reason for discounting the" }, { "docid": "23330925", "title": "", "text": "did not concede removability. Baghdasaryan submitted an application for asylum and withholding of removal based on political opinion. He also requested relief under CAT. After the merits hearing, the IJ issued an oral decision finding Baghdasaryan not credible and alternatively held that he had not established a nexus to a protected ground. The IJ denied all forms of relief. Baghdasaryan appealed to the BIA. The BIA reversed the IJ’s adverse credibility determination, but nevertheless dismissed the appeal for failure to establish a nexus to a protected ground. The BIA found “very little indication” that the Armenian government was imputing any political opinion to Baghdasaryan and that Baghdasaryan was merely the “victim [of] criminal misconduct.” The BIA also affirmed the IJ’s denial of relief under CAT. Baghdasaryan timely appealed. STANDARD OF REVIEW Because the BIA conducted a de novo review of the IJ’s decision, our review is “limited to the BIA’s decision except to the extent that the IJ’s opinion is expressly adopted [by the BIA].” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006). We typically review the BIA’s asylum and withholding of removal determinations under the substantial evidence standard. See Sinha v. Holder, 564 F.3d 1015, 1020 (9th Cir.2009). Under the substantial evidence standard, the BIA’s determinations will be upheld “if the decision is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir.2008) (quoting Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir.2005) (en banc)). Reversal, however, is appropriate when “the evidence in the record compels a reasonable factfinder to conclude that the [BIA’s] decision is incorrect.” Id. DISCUSSION I. THE BIA’S CONCLUSION THAT BAGHDASARYAN WAS INELIGIBLE FOR ASYLUM IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE To be statutorily eligible for asylum, Baghdasaryan must show that he is a refugee. 8 U.S.C. § 1158(b)(1). A refugee is one who is “unable or unwilling to avail himself or herself of the protection of [his or her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a" }, { "docid": "19090529", "title": "", "text": "recognized that “human rights violations do occur on a large scale in Sri Lanka,” but it found the evidence of those abuses insufficient to establish a “pattern or practice” of persecution on the basis of race, ethnicity, or another protected ground. A.R. 6. It also found the evidence insufficient to establish a likelihood that Sundararajan would be tortured if returned to Sri Lanka. A.R. 6. Finally, the BIA rejected Sundararajan’s contention that a remand was necessary because the IJ had neglected to adjudicate the additional claim that he would face harm in Sri Lanka as a failed asylum-seeker. A.R. 5 n. 1. The Board found no error in the IJ’s omission to address this claim specifically, even assuming that failed asylum seekers are a social group who could be said to share an immutable characteristic, such that they could claim a right to asylum. The Board saw this claim as dependent on Sundararajan’s credibility, and “[w]e affirm the Immigration Judge’s adverse credibility determination.” A.R. 5 n. 1. II. We review the IJ’s decision as supplemented by the Board’s own analysis. E.g., Bakarian v. Mukasey, 541 F.3d 775, 781 (7th Cir.2008). We examine the IJ’s factual determinations deferentially and will uphold them so long as they have the support of substantial evidence. E.g., Ingmantoro v. Mukasey, 550 F.3d 646, 649 (7th Cir.2008). At the core of both the IJ’s decision and the Board’s order upholding it was the determination that Sundararajan had failed to show that he has a well-founded fear that he will be persecuted if returned to Sri Lanka. We will disturb that determination only if the evidence of likely persecution was “ ‘so compelling that no reasonable factfinder could fail to find the requisite degree of persecution.’ ” Chatta v. Mukasey, 523 F.3d 748, 752 (7th Cir.2008) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 817, 117 L.Ed.2d 38 (1992)). A. Adverse credibility determination As was true before the BIA, Sundararajan’s first challenge is to the IJ’s determination that his testimony was not credible. He contends, contrary to the Board’s decision, that the adverse credibility" }, { "docid": "22755849", "title": "", "text": "ground upon which it did not rely.”). In Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003), we held that where the BIA makes no findings on the credibility issue, “we must proceed as if [petitioner’s] testimony were credible and determine .whether the BIA’s decision is supported by substantial evidence in the face of the assumed (but not determined) credibility.” In Kayembe, the IJ relied on an adverse credibility determination to deny the petitioner’s claim, but the BIA rested its affir-mance on other grounds, without making a Credibility determination. Aso instructive is Briones v. INS, 175 F.3d 727 (9th Cir.1999) (en banc), where the BIA had taken note of the IJ’s adverse credibility determination, but declined to address it, because the BIA found that Briones’s testimony, even if it-was credible, did not es tablish a well-founded fear of persecution. 175 F.3d at 728. Yet the Ninth Circuit, sitting en banc, analyzed the facts as- alleged by the petitioner and found that the allegations were of a “compelling nature” such that, “if trustworthy,” they would make out a claim for a well-founded fear of persecution. Id. The court then remanded to the BIA for credibility findings as to his claim. Similarly, in the instant case, the BIA identified “some error” in the IJ’s' decision, explicitly assumed credibility, and found Li had failed to even allege past persecution. Thus, in accord with Kay-embe and Briones, we will review the BIA’s legal conclusions assuming the credibility of Li’s testimony. B. Past Persecution Li testified to two categories of harm as a result of his resistance: 1) unfulfilled threats that he and his wife would be sterilized and/or physically harmed, and 2) economic harm. 1. Unfulfilled Threats Li testified that as a result of his violation of China’s population control policy, he was threatened with sterilization and physical violence. After the birth of Li’s fourth child, Li claimed, “At that time, my ... wife was in poor health, so they came to me. That means they want-to capture me to .■.. have sterilization done to me.” Li also claimed that he knew of a" } ]

[ { "docid": "22461613", "title": "", "text": "Fourteenth Amendment, not to have their serious medical needs met with deliberate indifference on the part of the confining officials. Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hare v. City of Corinth, 74 F.3d 633, 636 (5th Cir.1996) (en banc) (Hare II); Lancaster v. Monroe County, 116 F.3d 1419, 1426 (11th Cir.1997); Colle v. Brazos County, Texas, 981 F.2d 237 (5th Cir.1993); Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir.1979). Lancaster, Colle and Fielder establish that delirium tremens is a serious medical need. In Fielder, a request by the prisoner’s mother to the jailer that he receive medical attention for delirium tremens was followed by a request from the prisoner himself. Fielder 590 F.2d at 108. These requests were ignored, the jailers stating that they thought the prisoner was “faking.” Id. This evidence was sufficient to support the jury’s verdict for the plaintiff. Id. Colle reversed the district court’s dismissal of the plaintiffs complaint and held that the plaintiff properly alleged a constitutional violation by asserting that the sheriff: 1) staffed the jail with persons who did not have the authority to transfer a detainee to the hospital; and 2) had a policy of failing to monitor the serious health needs of detainees. Colle, 981 F.2d at 245. The sheriffs jailers failed to call for medical assistance as the condition of an inmate they knew to be suffering from delirium tremens worsened. Id. at 240. Lancaster reversed the district court’s grant of summary judgment based on defendants’ entitlement to qualified immunity and held that either a “total failure” to provide or an exacerbating delay in providing life saving medical treatment to a detainee suffering from DTs was a violation of constitutional rights. Lancaster, 116 F.3d at 1425-28. The court cited Fielder for the proposition that DTs was recognized as a serious medical need. Id. at 1426. Lancaster established that ignoring the dangers of alcohol withdrawal and waiting for a “manifest emergency” before summoning medical help constituted deliberate indifference. The facts in Lancaster were particularly egregious because the detainee’s wife and father had" } ]

[ { "docid": "22773872", "title": "", "text": "Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 380 (5th Cir.2005) (internal quotation omitted). . Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), cited in Lawson v. Dallas County, 286 F.3d 257 (5th Cir.2002). . Id. . Caldwell does not contest that the nature of Gobert's wound exposed him to an increased risk of developing an infection, if he did not receive proper treatment. It is undisputed that the infection also posed a substantial health risk. . Farmer, 511 U.S. at 847, 114 S.Ct. 1970; see also Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir.1994). . See Banuelos, 41 F.3d at 235; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.1991); Hall, 190 F.3d at 697; Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir.1999). . Domino v. Texas Dep't of Crim. Justice, 239 F.3d 752, 756 (5th Cir.2001) (quoting Estelle, 429 U.S. at 107, 97 S.Ct. 285). . Id. (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.1985)). . Id.; see also Hernandez, 380 F.3d at 882 (\"We begin by emphasizing that our court has interpreted the test of deliberate indifference as a significantly high burden for plaintiffs to overcome.”). . See Ragas v. Koch Gateway Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998) (explaining that unsubstantiated assertions are not competent summary judgment evidence sufficient to defeat a properly supported motion). .\"Medical records of sick calls, examinations, diagnoses, and medications may rebut an inmate's allegations of deliberate indifference.” Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir.1995) (citing Mendoza v. Lynaugh, 989 F.2d 191, 193-95 (5th Cir.1993); Bejaran v. Cruz, 79 Fed.Appx. 73, 74 (5th Cir.2003) (stating that \"Bejaran's admission in his complaint that the prison medical staff took x-rays of his back and ... gave him 'generic,' ‘mild medications' refute his assertion of deliberate indifference to his medical needs”)). Caldwell's rendition of the facts related to treatment are laid out below: Plaintiff's leg wound was cleaned, the dressing changed, and/or the wound examined, every day of his seventy-three (73) day stay at EHCC, with only three" }, { "docid": "12161369", "title": "", "text": "and Dean.” Accordingly, the court entered judgments in the amounts of $1,000.00, $3,600.00 and $4,000.00 in favor of appellants Polk, Dean and Cowley, respectively, against appellees Saldivar and Maddox. The court further determined that there was no evidence adduced at trial that Sheriff Gladney was negligent in the selection of his deputies, that he had any personal knowledge of the events at the jail on the afternoon of May 11, or that he personally ratified the acts of his deputies that day. Thus, the court dismissed the cause of action against Sheriff Gladney with prejudice. Moreover, the district court held that liability could not be imposed on Brazoria County or the Cities of Angleton, Clute, and Freeport, Texas, “because of the doctrine of sovereign immunity” and therefore dismissed plaintiffs' causes of action against those entities with prejudice. Finally, after considering the factors set forth in Rainey v. Jackson State College, 551 F.2d 672 (5th Cir. 1977), the district court awarded appellants’ counsel attorney fees totalling $8,445 against appellees Saldivar and Maddox. Following the denial of Saldivar’s and Maddox’ motion for a new trial, appellants filed a notice of appeal, alleging essentially three grounds of error: (1) failure to hold the county and the municipalities liable for damages to plaintiffs for first and eighth amendment violations committed by their employees; (2) failure to impose liability upon the county and municipalities for attorneys’ fees incurred by appellants in the trial and appeal of the instant case pursuant to the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988; and (3) failure to consider whether the attorneys’ fees were fixed or contingent as required by Rainey, supra, in determining the amount of attorneys’ fees awarded against Deputy Saldivar and Officer Maddox pursuant to section 1988. Saldivar cross appeals, charging that the district court erred in holding him jointly and severally liable with Officer Maddox for the damages awarded appellants Polk, Dean, and Cowley. We consider the appellants’ and cross appellant’s contentions seriatim. Respondeat Superior Liability The district court held that it could not impose liability on the county or the municipalities for" }, { "docid": "12161386", "title": "", "text": "was a principal assistant of Sheriff Gladney and the officer in charge of the police activities on the beach on the afternoon of May 11, other unknown police officers who participated in the activities relating to appellants, and the Brazoria County deputy sheriffs who were in charge of the jail that afternoon were, as a matter of law, joint tortfeasors with Saldivar and Maddox. . The court also awarded appellant Cowley $1,000.00 in exemplary damages against Officer Maddox alone. With respect to appellant Hawkins, the district court entered judgment in his favor in the amount of $3,300.00 in damages against Saldivar alone. These awards are not at issue on appeal. . The court also found that there was no evidence to show that any of the established procedures at the jail was responsible for the treatment of the plaintiffs. . The dismissal of the cause of action against Sheriff Gladney has not been appealed. We note, however, that on the facts as found by the district court, dismissal was proper. See Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979). . Only those aspects of the district court’s memorandum opinion and final judgment that are relevant to this appeal are discussed in our opinion. We neither recount nor discuss other facets of the action below. . Of that sum, $6,535 was awarded to appellants’ lead counsel, W. Thomas McKissick, and $1,910 to appellants’ co-counsel, Edward L. Sargologos. . 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). . Although appellants do not raise their § 1983 claim on appeal, we note that Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), decided by the Supreme Court after the district court’s opinion, controls this claim. In Monell the Supreme Court held that “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id at 691, 98 S.Ct. at 2036. Thus, the district court’s dismissal of appellants’ § 1983 claim was correct. . In particular, the district court relied on Mr. Justice Harlan’s statement in concurrence that “[h]owever desirable a" }, { "docid": "12161383", "title": "", "text": "instances, such as the “chain of command” situation in Nesmith, in which imposing liability for another’s actions is appropriate, but the instant case is not one of them. Plaintiffs’ counsel refer us to several cases that, they assert, support the imposition of joint and several liability in the instant case. The principal case cited is Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952), which established the theory of “indivisible injury”: Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit. Id. at 734. See also Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973); Bristol-Myers Co. v. Gonzales, 548 S.W.2d 416, 427 (Tex.Civ.App.—Corpus Christi 1976) (“The general rule of contribution is that when two or more persons concur in producing a single indivisible injury, then such persons are jointly and severally liable although no common duty, common design, or concerted action exists.”), rev’d on other grounds, 561 S.W.2d 801 (Tex. 1978). In our view, however, the “indivisible injury” theory is inapposite here, because the injuries to the various appellants are in no sense indivisible. Instead, they are personal, individual, and discrete. Moreover, each can be apportioned with reasonable certainty to either Saldivar or Maddox, as our discussion above makes clear. We thus conclude that the district court erred in finding as a matter of law that Saldivar was a joint tortfeasor and reverse the district court’s judgment that Saldivar is jointly and severally liable for the damages of appellants Dean, Polk and Cowley. Having reversed Saldivar’s liability to these appellants, we remand the issue of attorneys’ fees to the district court for reconsideration. The court awarded plaintiffs’ attorneys fees in the amount of $8,445 against Saldivar and Maddox jointly. In light of our finding" }, { "docid": "11707287", "title": "", "text": "at Park Place Apartments paying the security deposit. Here, Gladney presented the desired testimony through Benton, thus, actual prejudice cannot be established. See id. The district court did not commit clear error in denying Gladney’s motion to dismiss for pre-indictment delay. B. Addict-Informer Jury Instruction Gladney also argues the district court erred in rejecting his proposed addict-informer jury instruction. We disagree. We review a district court’s rejection of a defendant’s jury instruction for abuse of discretion. United States v. Davis, 237 F.3d 942, 945 (8th Cir.2001). This circuit has not adopted the rule that an addict-informer instruction must be given if requested. The need for such an instruction depends on the circumstances of each case. United States v. Dempewolf, 817 F.2d 1318, 1321 (8th Cir.1987); see United States v. Gardner, 139 Fed.Appx. 762, 765 (8th Cir.2005) (per curiam) (unpublished). The presence of any of the following factors may make an addict-informer instruction unnecessary: (1) a dispute as to whether the informant is actually an addict, (2) cross-examination concerning the informant’s addiction, (3) an instruction alerting the jury to view the informant’s testimony with care, and (4) corroboration of the informant’s testimony. Dempewolf, 817 F.2d at 1321. Here, nothing in the record indicates Saldivar used drugs during the dates in question. In fact, Investigator Robinson- testified Saldivar did not appear to be under the influence of illegal drugs at the time the drug transactions occurred. In addition, although Saldivar admitted to using cocaine “for like a day or two” while on probation and tested positive for cocaine on September 16, 2003, Saldivar denied using drugs on August 12 and September 11, 2003. Furthermore, Gladney’s counsel cross-examined Saldivar about his drug use. The district court told Gladney’s counsel he could ask the jury to consider Saldivar’s alleged drug use when evaluating Saldi-var’s memory. In addition, the district court instructed the jury that Saldivar had a cooperation agreement with the government, through which Saldivar received money and other benefits, and that Saldi-var had prior convictions, which the jury could consider in deciding whether to believe Saldivar. Moreover, much of Saldi-var’s testimony was reinforced" }, { "docid": "12161382", "title": "", "text": "cannot be viewed as a “chain of command”; nor were their actions so “intertwined and interlocking” that liability cannot be apportioned between them. The jury made specific findings with respect to the arrest and detention of each of the appellants, and the judge made additional findings concerning Officer Maddox’ involvement. These findings indicate that Officer Maddox was at least in part responsible for the damages suffered by appellants Dean, Polk, and Cowley. He may thus be held liable for the damages these appellants suffered. On the other hand, there is no evidence whatsoever linking Deputy Saldivar to the arrest or detention of any appellant other than George Hawkins, for whose damages Deputy Saldivar admits liability. To hold Saldivar liable for Officer Maddox’ actions without any indication that he was involved in those actions would subject a police officer involved in a group arrest or confrontation to an intolerable burden — liability for any unconstitutional act committed by any one of his colleagues, regardless of his own lack of participation in those acts. Certainly, there are instances, such as the “chain of command” situation in Nesmith, in which imposing liability for another’s actions is appropriate, but the instant case is not one of them. Plaintiffs’ counsel refer us to several cases that, they assert, support the imposition of joint and several liability in the instant case. The principal case cited is Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952), which established the theory of “indivisible injury”: Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit. Id. at 734. See also Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973); Bristol-Myers Co. v. Gonzales, 548 S.W.2d 416, 427 (Tex.Civ.App.—Corpus Christi 1976) (“The general rule of" }, { "docid": "12161384", "title": "", "text": "contribution is that when two or more persons concur in producing a single indivisible injury, then such persons are jointly and severally liable although no common duty, common design, or concerted action exists.”), rev’d on other grounds, 561 S.W.2d 801 (Tex. 1978). In our view, however, the “indivisible injury” theory is inapposite here, because the injuries to the various appellants are in no sense indivisible. Instead, they are personal, individual, and discrete. Moreover, each can be apportioned with reasonable certainty to either Saldivar or Maddox, as our discussion above makes clear. We thus conclude that the district court erred in finding as a matter of law that Saldivar was a joint tortfeasor and reverse the district court’s judgment that Saldivar is jointly and severally liable for the damages of appellants Dean, Polk and Cowley. Having reversed Saldivar’s liability to these appellants, we remand the issue of attorneys’ fees to the district court for reconsideration. The court awarded plaintiffs’ attorneys fees in the amount of $8,445 against Saldivar and Maddox jointly. In light of our finding that Saldivar and Maddox are not joint tortfeasors, we believe the district court should apportion the amounts of attorneys’ fees owed to appellants by each of the officers. Conclusion In sum, we affirm the district court’s dismissal of appellants’ claims against Brazoria County and the City of Clute; we find no abuse of discretion in the court’s failure to award appellants attorneys’ fees against the county and the city or in its handling of the contingency fee factor; we reverse its finding that Saldivar was a joint tortfeasor with Maddox; and we remand the issue of attorneys’ fees for reconsideration. AFFIRMED in part and REVERSED in part and REMANDED. . Present appellants include Mary Elizabeth Dean, Mrs. Ronald Cowley, Mrs. Frank M. Polk, Jr., and George W. Hawkins. . Dugan died prior to trial, and his estate was not a party to this suit at the time of trial. . Deputy Jones was a witness at trial, but was not made a defendant in this suit. . The court also found that Deputy Dugan, who" }, { "docid": "10340829", "title": "", "text": "defendant is represented by more than adequate counsel. He previously appeared before me [at the guilty plea hearing] and affirmed his satisfaction with counsel, and that is apparent in the transcript[,] and willingly entered a plea. I am concerned that his motion is an attempt to delay his sentence and not a legitimate motion for substitute counsel. In any event, he has failed to show good cause for me to substitute counsel, and I find the public interest[ ] in the prompt and efficient administration of justice outweighs his right to counsel of his choice. Therefore, his letter motions and his oral motion to substitute counsel is denied. In addition to discussing his representation of Saldivar-Trujillo, defense counsel argued at the sentencing hearing that the district court should reduce his client’s sentence for acceptance of responsibility. The prosecutor agreed that a three-level reduction was appropriate, and the court accordingly reduced Saldivar-Trujillo’s offense level by that amount. II. ANALYSIS A. Standard of review “An indigent defendant has no right to have a particular attorney represent him and therefore must demonstrate ‘good cause’ to warrant substitution of counsel.” United States v. Iles, 906 F.2d 1122, 1130 (6th Cir.1990). We will reverse a district court’s decision regarding an indigent defendant’s motion for substitute counsel only if the district court has abused its discretion. Id. at 1130 n. 8. In order to decide whether a district court has abused its discretion, we must consider the timeliness of the motion; the adequacy of the court’s inquiry into the defendant’s complaint; and whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense.... Further, [consideration of such motions requires a balancing of the accused’s right to counsel of his choice and the public’s interest in the prompt and efficient administration of justice. Id. (citations and quotation marks omitted). B. The district court did not abuse its discretion by denying Saldivar-Tru-jillo’s motion for substitute counsel Saldivar-Trujillo’s request for substitute counsel was timely because he wrote his first letter to the judge a full two" }, { "docid": "12161381", "title": "", "text": "318 F.2d 110 (5th Cir. 1963), as holding that “all officers who participate in an illegal arrest and detention are jointly and severally liable as joint tort feasors if they participated in any of the actions in connection with the illegal arrest and detention.” In our view, Nesmith, cannot be read so broadly. In that case we noted that the three police officer defendants had acted as one: Although there was no prior plan devised to bring about the arrest and imprisonment of the plaintiffs, each one of the three had a substantial role in bringing about the results. This was an instance of the typical “chain of command,” Sullivan indicating to Ruppenthal that the Plaintiffs should be removed from the cafe, Ruppenthal giving the authoritative commands constituting the arrest, and Alford providing the essential transportation at the direction of Ruppenthal. Their actions throughout the whole sequence of events are so intertwined and interlocking that these Defendants must fall together. Id. at 119. In the instant case the actions of Deputy Saldivar and Officer Maddox cannot be viewed as a “chain of command”; nor were their actions so “intertwined and interlocking” that liability cannot be apportioned between them. The jury made specific findings with respect to the arrest and detention of each of the appellants, and the judge made additional findings concerning Officer Maddox’ involvement. These findings indicate that Officer Maddox was at least in part responsible for the damages suffered by appellants Dean, Polk, and Cowley. He may thus be held liable for the damages these appellants suffered. On the other hand, there is no evidence whatsoever linking Deputy Saldivar to the arrest or detention of any appellant other than George Hawkins, for whose damages Deputy Saldivar admits liability. To hold Saldivar liable for Officer Maddox’ actions without any indication that he was involved in those actions would subject a police officer involved in a group arrest or confrontation to an intolerable burden — liability for any unconstitutional act committed by any one of his colleagues, regardless of his own lack of participation in those acts. Certainly, there are" }, { "docid": "10340832", "title": "", "text": "the removal to be as a result of his conviction. Any objection by defense counsel to this 16-level increase would therefore have been frivolous, and the district court properly refused Saldivar-Trujillo’s request to appoint substitute counsel who would make such an argument. As for Saldivar-Trujillo’s allegation that defense counsel had not explained the indictment to him and had tricked him into pleading guilty, the district court correctly concluded that the transcript of the guilty plea hearing demonstrated that Saldivar-Trujillo fully understood the elements of the offense. The only potential harm to Saldivar-Trujillo’s interests occurred when defense counsel walked out of the meeting with the presentence investigator. Because the attorney left, the investigator was unable to determine whether Saldivar-Trujillo had accepted responsibility for his actions, thereby entitling him to a sentence reduction. But defense counsel remedied this potential harm to Saldivar-Trujillo by successfully arguing at the sentencing hearing for the three-level reduction. Defense counsel’s actions at the meeting therefore did not constitute good cause for the district court to grant Saldivar-Trujillo substitute counsel. The only lies factor that the district court did not consider, because it was not in a position to do so, is “the adequacy of the court’s inquiry into the defendant’s complaint....” 906 F.2d at 1130 n. 8. This is for us to decide. Our review of the sentencing hearing shows that the district court summarized the contents of Saldivar-Trujillo’s letters and allowed Saldivar-Trujillo, his defense counsel, and the prosecutor the opportunity to address the complaint at issue. We conclude that this inquiry was adequate because it allowed all of the interested parties to present their respective evidence and arguments. The district court correctly determined “that there was not a total lack of communication” between Saldivar-Trujillo and his attorney, that Saldivar-Trujillo was not prejudiced in any way by his attorney’s performance, and that Saldivar-Trujillo’s right to the counsel of his choice was outweighed by the public interest in the prompt and efficient administration of justice. Because Saldivar-Trujillo did not demonstrate good cause to warrant the substitution of counsel, the district court’s denial of his request was not an" }, { "docid": "12161368", "title": "", "text": "illegal force, but that unknown officers, acting without good faith, had subjected her to cruel and unusual punishment, necessitating an award of compensatory damages in the amount of $1,000.00. The jury found that appellant Dean had been arrested without probable cause, in retaliation for exercising her protected first amendment rights, by unknown officers acting with “malice, ill will and conscious disregard of her rights” and had been subjected to cruel and unusual punishment. It awarded her compensatory damages of $2,600.00 for her injuries and punitive damages of $1,000.00. Finally, the jury determined that appellant Cowley had been arrested by Officer Maddox without probable cause, in retaliation for her exercise of protected first amendment rights, and subjected to cruel and unusual punishment, meriting compensatory damages of $4,000.00 and punitive damages of $1,000.00. In addition to those facts established by the jury findings, the district court found, as a matter of law, that Officer Maddox and Deputy Saldivar were, “in light of the jury verdict, joint tort-feasors whose torts proximately caused the damages to plaintiffs Polk, Cowley and Dean.” Accordingly, the court entered judgments in the amounts of $1,000.00, $3,600.00 and $4,000.00 in favor of appellants Polk, Dean and Cowley, respectively, against appellees Saldivar and Maddox. The court further determined that there was no evidence adduced at trial that Sheriff Gladney was negligent in the selection of his deputies, that he had any personal knowledge of the events at the jail on the afternoon of May 11, or that he personally ratified the acts of his deputies that day. Thus, the court dismissed the cause of action against Sheriff Gladney with prejudice. Moreover, the district court held that liability could not be imposed on Brazoria County or the Cities of Angleton, Clute, and Freeport, Texas, “because of the doctrine of sovereign immunity” and therefore dismissed plaintiffs' causes of action against those entities with prejudice. Finally, after considering the factors set forth in Rainey v. Jackson State College, 551 F.2d 672 (5th Cir. 1977), the district court awarded appellants’ counsel attorney fees totalling $8,445 against appellees Saldivar and Maddox. Following the denial of" }, { "docid": "12161379", "title": "", "text": "Brazoria County and the City of Clute was proper. The Contingency Fee Factor Appellants next complain of the district court’s failure to consider the contingency fee factor in determining the amount to be awarded as attorneys’ fees. The district court, in its opinion, set forth a step-by-step analysis of all the factors to be considered in such a determination as required by Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See also Rainey v. Jackson State College, 551 F.2d 672 (5th Cir. 1977). With respect to the contingency fee factor, the court found: “As stated previously, both attorneys asserted that they took this case without expectation of remuneration. Accordingly, the factor of whether the fee is contingent or fixed is not applicable.” Appellants do not assert that this finding is clearly erroneous under Fed.R.Civ.P. 52(a); instead, they point out that attorneys’ fees had been requested from the beginning of the lawsuit, which was prior to the passage of the Civil Rights Attorney’s Fees Awards Act of 1976. They assert no prejudice that they have suffered as a result of the district court’s “oversight.” Consideration of all the Johnson factors is mandatory. See Norwood v. Harrison, 581 F.2d 518, 520 (5th Cir. 1978). However, the district court did consider all of the Johnson factors but found that circumstances rendered the contingency fee factor inapplicable. Because this finding has not been shown to be clearly erroneous, there is no reversible error here. Joint and Several Liability In his cross appeal, Deputy Saldivar complains about the trial judge’s finding, as a matter of law, that he was a joint tortfeasor with Officer Maddox and is therefore liable to appellants Dean, Polk, and Cowley for the full amount of their damages. In light of the factual findings made below and the case law precedents to which we have been cited, we reverse the finding of joint liability. Accordingly, we remand this case to the district court for an allocation of the burden of appellants’ attorneys’ fees between Saldivar and Maddox. In its opinion the district court characterized Nesmith v. Alford," }, { "docid": "10340831", "title": "", "text": "months before the sentencing hearing. But all of the other lies factors weigh against the granting of his request. The district court properly concluded “that there was not a total lack of communication” because “in his letter he references attempts to obtain information from his lawyer, he expresses dissatisfaction with the responses he got from his lawyer, not with the [lack of] opportunity or his [inlability to talk to his lawyer or contact his lawyer.” Granting Saldivar-Trujillo’s request for substitute counsel, moreover, would actually have impeded the efficient administration of justice because his complaints about his attorney’s performance were frivolous. Saldivar-Trujillo’s essential grievance was that his attorney would not object to the 16-level enhancement based upon his prior aggravated felony conviction. As the government points out in its brief, however, Defendant’s complaint stemmed from an apparent misunderstanding of the law. The Defendant misconstrued the legal significance of his prior drug conviction and removal. The district court properly held that it was not necessary for the conviction to state “aggravated” and it was not necessary for the removal to be as a result of his conviction. Any objection by defense counsel to this 16-level increase would therefore have been frivolous, and the district court properly refused Saldivar-Trujillo’s request to appoint substitute counsel who would make such an argument. As for Saldivar-Trujillo’s allegation that defense counsel had not explained the indictment to him and had tricked him into pleading guilty, the district court correctly concluded that the transcript of the guilty plea hearing demonstrated that Saldivar-Trujillo fully understood the elements of the offense. The only potential harm to Saldivar-Trujillo’s interests occurred when defense counsel walked out of the meeting with the presentence investigator. Because the attorney left, the investigator was unable to determine whether Saldivar-Trujillo had accepted responsibility for his actions, thereby entitling him to a sentence reduction. But defense counsel remedied this potential harm to Saldivar-Trujillo by successfully arguing at the sentencing hearing for the three-level reduction. Defense counsel’s actions at the meeting therefore did not constitute good cause for the district court to grant Saldivar-Trujillo substitute counsel. The only lies" }, { "docid": "10340830", "title": "", "text": "and therefore must demonstrate ‘good cause’ to warrant substitution of counsel.” United States v. Iles, 906 F.2d 1122, 1130 (6th Cir.1990). We will reverse a district court’s decision regarding an indigent defendant’s motion for substitute counsel only if the district court has abused its discretion. Id. at 1130 n. 8. In order to decide whether a district court has abused its discretion, we must consider the timeliness of the motion; the adequacy of the court’s inquiry into the defendant’s complaint; and whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense.... Further, [consideration of such motions requires a balancing of the accused’s right to counsel of his choice and the public’s interest in the prompt and efficient administration of justice. Id. (citations and quotation marks omitted). B. The district court did not abuse its discretion by denying Saldivar-Tru-jillo’s motion for substitute counsel Saldivar-Trujillo’s request for substitute counsel was timely because he wrote his first letter to the judge a full two months before the sentencing hearing. But all of the other lies factors weigh against the granting of his request. The district court properly concluded “that there was not a total lack of communication” because “in his letter he references attempts to obtain information from his lawyer, he expresses dissatisfaction with the responses he got from his lawyer, not with the [lack of] opportunity or his [inlability to talk to his lawyer or contact his lawyer.” Granting Saldivar-Trujillo’s request for substitute counsel, moreover, would actually have impeded the efficient administration of justice because his complaints about his attorney’s performance were frivolous. Saldivar-Trujillo’s essential grievance was that his attorney would not object to the 16-level enhancement based upon his prior aggravated felony conviction. As the government points out in its brief, however, Defendant’s complaint stemmed from an apparent misunderstanding of the law. The Defendant misconstrued the legal significance of his prior drug conviction and removal. The district court properly held that it was not necessary for the conviction to state “aggravated” and it was not necessary for" }, { "docid": "12161370", "title": "", "text": "Saldivar’s and Maddox’ motion for a new trial, appellants filed a notice of appeal, alleging essentially three grounds of error: (1) failure to hold the county and the municipalities liable for damages to plaintiffs for first and eighth amendment violations committed by their employees; (2) failure to impose liability upon the county and municipalities for attorneys’ fees incurred by appellants in the trial and appeal of the instant case pursuant to the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988; and (3) failure to consider whether the attorneys’ fees were fixed or contingent as required by Rainey, supra, in determining the amount of attorneys’ fees awarded against Deputy Saldivar and Officer Maddox pursuant to section 1988. Saldivar cross appeals, charging that the district court erred in holding him jointly and severally liable with Officer Maddox for the damages awarded appellants Polk, Dean, and Cowley. We consider the appellants’ and cross appellant’s contentions seriatim. Respondeat Superior Liability The district court held that it could not impose liability on the county or the municipalities for the acts of their employees on appellants’ implied cause of action under the Constitution, predicated on Bivens v. Six Unknown Named Federal Nar cotics Agents, or on their section 1983 claim “because of the doctrine of sovereign immunity.” Only the Bivens claim is before us on appeal. The district court correctly noted that “Bivens establishes a cause of action against an individual federal officer if the federal officer violated the plaintiff’s constitutional rights and such violation is a proximate cause of damages.” He observed, however, that “Bivens leaves intact the doctrine of sovereign immunity.” We agree with the district court that Bivens does not sanction the imposition of, and should not be read to impose, respondeat superior liability on a municipality or a county for the acts of its employees. Our conclusion here gains support from the reasoning of decisions in six of our sister circuits that have considered the question before us. See Jones v. City of Memphis, 586 F.2d 622 (6th Cir. 1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1230, 59 L.Ed.2d" }, { "docid": "22251883", "title": "", "text": "U.S. at 278, 105 S.Ct. at 1948 (emphasis added). Finally, federal district courts in Wisconsin that have confronted this issue after the Supreme Court’s opinion in Wilson have also applied the personal rights statute of limitations to § 1983 actions. For example, in Saldivar v. Cadena, 622 F.Supp. 949 (W.D.Wis.1985), the plaintiff sued the defendant in part under § 1983 for racial and sexual harassment. The defendants moved to dismiss the complaint on the ground that it was barred by Wisconsin’s three-year statute of limitations for personal injury. The Saldivar court reasoned that under Wilson, courts should choose a statute of limitations governing personal rights over bodily injury. Id. at 955. Accordingly, the Saldivar court held that Wisconsin’s six-year statute of limitations for personal rights applied to § 1983 actions. Id. This determination was reaffirmed in two subsequent decisions. See Jordi v. Sauk Prairie School Bd., 651 F.Supp. 1566, 1573 (W.D.Wis.1987); Thompson v. County of Rock, 648 F.Supp. 861, 866 (W.D.Wis.1986). The appellees argue that we should apply Wisconsin’s three-year personal injury statute of limitations to § 1983 claims because the Wisconsin Appellate Court had previously done so in Hanson v. Madison Service Corp., 125 Wis.2d 138, 370 N.W.2d 586, 588 (Wis.Ct.App.1985). The appellees reliance on Hanson is misplaced. The characterization of a § 1983 action for statute of limitations purposes is an issue of federal law. See Wilson, 471 U.S. at 268-69, 105 S.Ct. at 1943. Thus, the decision by the Wisconsin Appellate Court is not binding on our court. Additionally, the Hanson court did not have the benefit of the Supreme Court’s recent decision in Owens that further clarified which state statute of limitations should apply to § 1983 actions. Therefore, we decline to follow Hanson, and we hold that Wisconsin’s six-year personal rights statute of limitations applies to § 1983 actions. Because Gray filed her complaint on April 18, 1988, she can maintain this § 1983 action based on any claims that occurred on or after April 18, 1982. IV. Timely Service of Process The appellees also contend that Gray’s claims are barred because she did not" }, { "docid": "10340833", "title": "", "text": "factor that the district court did not consider, because it was not in a position to do so, is “the adequacy of the court’s inquiry into the defendant’s complaint....” 906 F.2d at 1130 n. 8. This is for us to decide. Our review of the sentencing hearing shows that the district court summarized the contents of Saldivar-Trujillo’s letters and allowed Saldivar-Trujillo, his defense counsel, and the prosecutor the opportunity to address the complaint at issue. We conclude that this inquiry was adequate because it allowed all of the interested parties to present their respective evidence and arguments. The district court correctly determined “that there was not a total lack of communication” between Saldivar-Trujillo and his attorney, that Saldivar-Trujillo was not prejudiced in any way by his attorney’s performance, and that Saldivar-Trujillo’s right to the counsel of his choice was outweighed by the public interest in the prompt and efficient administration of justice. Because Saldivar-Trujillo did not demonstrate good cause to warrant the substitution of counsel, the district court’s denial of his request was not an abuse of discretion. C. Legality of the sentence under Blakely v. Washington Saldivar-Trujillo’s final contention is that his sentence should be vacated pursuant to Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403, where the Supreme Court struck down a Washington-state sentencing proceeding in which the judge imposed punishment that the jury’s verdict alone did not allow. But even if we were to assume for the sake of argument that Blakely applies to cases involving the United States Sentencing Guidelines (an issue very much in dispute at the present time), the Supreme Court’s decision would not require us to vacate Saldivar-Trujillo’s sentence. The Blakely Court explained that a sentence may be imposed by a judge if it is based solely on the “facts reflected in the jury verdict or admitted by the defendant.” -U.S. at -, 124 S.Ct. at 2537 (emphasis in original). The sentence in the present case was based solely upon the facts admitted by Saldivar-Trujillo as part of his guilty plea. Blakely therefore does not affect the validity of" }, { "docid": "12161380", "title": "", "text": "that they have suffered as a result of the district court’s “oversight.” Consideration of all the Johnson factors is mandatory. See Norwood v. Harrison, 581 F.2d 518, 520 (5th Cir. 1978). However, the district court did consider all of the Johnson factors but found that circumstances rendered the contingency fee factor inapplicable. Because this finding has not been shown to be clearly erroneous, there is no reversible error here. Joint and Several Liability In his cross appeal, Deputy Saldivar complains about the trial judge’s finding, as a matter of law, that he was a joint tortfeasor with Officer Maddox and is therefore liable to appellants Dean, Polk, and Cowley for the full amount of their damages. In light of the factual findings made below and the case law precedents to which we have been cited, we reverse the finding of joint liability. Accordingly, we remand this case to the district court for an allocation of the burden of appellants’ attorneys’ fees between Saldivar and Maddox. In its opinion the district court characterized Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963), as holding that “all officers who participate in an illegal arrest and detention are jointly and severally liable as joint tort feasors if they participated in any of the actions in connection with the illegal arrest and detention.” In our view, Nesmith, cannot be read so broadly. In that case we noted that the three police officer defendants had acted as one: Although there was no prior plan devised to bring about the arrest and imprisonment of the plaintiffs, each one of the three had a substantial role in bringing about the results. This was an instance of the typical “chain of command,” Sullivan indicating to Ruppenthal that the Plaintiffs should be removed from the cafe, Ruppenthal giving the authoritative commands constituting the arrest, and Alford providing the essential transportation at the direction of Ruppenthal. Their actions throughout the whole sequence of events are so intertwined and interlocking that these Defendants must fall together. Id. at 119. In the instant case the actions of Deputy Saldivar and Officer Maddox" }, { "docid": "22773871", "title": "", "text": "3034, 97 L.Ed.2d 523 (1987). . Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); see also Bel-tran v. City of El Paso, 367 F.3d 299, 303 (5th Cir.2004). . A serious medical need is one for which treatment has been recommended or for which the need is so apparent that even laymen would recognize that care is required. Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1187 (11th Cir.1994), abrogated on other grounds by Hope, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666. . Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (“We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment.” (internal quotation and citation omitted)); see also Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir.1999) (quoting Estelle). . \"Once raised, a plaintiff has the burden to rebut the qualified immunity defense by establishing that the official's allegedly wrongful conduct violated clearly established law.” Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 380 (5th Cir.2005) (internal quotation omitted). . Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), cited in Lawson v. Dallas County, 286 F.3d 257 (5th Cir.2002). . Id. . Caldwell does not contest that the nature of Gobert's wound exposed him to an increased risk of developing an infection, if he did not receive proper treatment. It is undisputed that the infection also posed a substantial health risk. . Farmer, 511 U.S. at 847, 114 S.Ct. 1970; see also Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir.1994). . See Banuelos, 41 F.3d at 235; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.1991); Hall, 190 F.3d at 697; Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir.1999). . Domino v. Texas Dep't of Crim. Justice, 239 F.3d 752, 756 (5th Cir.2001) (quoting Estelle, 429 U.S. at 107, 97 S.Ct. 285). . Id. (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.1985)). . Id.; see also" }, { "docid": "22856257", "title": "", "text": "other things, “whether the court has provided a statement explaining the dismissal that facilitates intelligent appellate review.” Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992) (quotation omitted). This requires the court to examine whether an inmate’s “insufficient factual allegations might be remedied by more specific pleading.” Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.1994). Traditionally, the “principal vehicles ... for remedying inadequacy in prisoner pleadings are the Spears hearing and a questionnaire to bring into focus the factual and legal bases of prisoners’ claims.” Id. (quotation omitted). ■ The district court used a questionnaire instead of a Spears hearing. Had the district court conducted a hearing, it may have addressed Brewster’s Eighth Amendment claim. Any error in failing to hold a hearing, however, was harmless because Brewster’s pleadings fail to state a claim under the Eighth Amendment, as discussed below, and because Brewster fails to show how the district court’s decision prevented him from adequately presenting his other claims. Cf. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir.1986) (“A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.”). Generally, as Brewster argues, a pro se litigant should be offered an oppor tunity to amend his complaint before it is dismissed. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998) (per curiam) (reviewing the district court’s dismissal under 42 U.S.C. § 1997(e)). Granting leave to amend is not required, however, if the plaintiff has already pleaded his “best case.” Id. Brewster gives no indication that he did not plead his best case in his complaint and more definite statement. He does not state any material facts he would have included in an amended complaint. See Shope v. Texas Dep’t of Criminal Justice, 283 Fed.Appx. 225, 226 (5th Cir.2008) (unpublished) (“Shope does not allege what facts he would include in an amended complaint. Therefore, Shope has not shown that the district court abused its discretion in dismissing his complaint.”) (citing Ashe v. Corley, 992 F.2d 540," } ]

[ { "docid": "12398583", "title": "", "text": "income tax refund in an amount of $75.96. On April 27, 1987, the Debtors provided the Trustee with copies of their 1986 tax returns. Upon the Trustee’s motion, the case was reopened on May 28, 1987, and the instant motion ensued. II. The contentions of the parties hereto, which are several in number, have been duly considered by the Court. The record in its entirety has been reviewed, in addition to the Court having heard the respective arguments of counsel. The law is well established that income tax refunds constitute property of a bankruptcy estate, title to which vests in the estate upon the filing of the debtor’s Chapter 7 petition. Turshen v. Chapman, 823 F.2d 836 (4th Cir.1987); Kokoszka v. Belford, 417 U.S. 642, 645-48, 94 S.Ct. 2431, 2433-35, 41 L.Ed.2d 374 (1974); In re Doan, 672 F.2d 831, 833 (11th Cir.1982); cf., Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966). Only the portion of the refund which is attributable to prepetition withholding is properly included in the estate, In re Rash, 22 B.R. 323, 9 B.C.D. 411 (D.Kan.1982); and postpetition property inures to the debtor’s fresh start. See, Segal, supra. Where appropriate, a pro-rationing of the refund is proper. In re Devoe, 5 B.R. 618, 620 (Bankr.S.D.Ohio, 1980); In re Doan, supra at 832. Herein, the Debtors contend, inter alia, that the assets of the reopened estate are only those portions of the tax refund remaining in the Debtors’ possession as of May 28, 1987. The Trustee contends that all of the tax refund which can be attributed to the Debtors’ prepetition earnings is property of the estate, notwithstanding what amount may or may not presently be in the Debtors’ possession. Further, the Debtors contend that both are entitled to claim exemptions against their tax refund, even though the tax return was filed only by Lester Smith as a married person filing individually. It is uncontested, and the Debtors represent, that of the total tax refund received the Debtors presently have only $1,586.00 remaining in their possession. It was not alleged, and the" } ]

[ { "docid": "10217707", "title": "", "text": "27 L.Ed.2d 124 (1970) (vacation pay is not property within the scope of § 70(a)(5)). The Bankrupt would have the Court place significance upon the distinction that the refund in question here was earned during the calendar year in which the petition was filed, rather than during the preceding year as was the case in Kokoszka. Nothing in the Supreme Court’s rationale supports the conclusion that such a distinction would dictate a contrary result. In re Griffin, 1 B.R. 653, 654-55 (Bkrtcy.M.D.Tenn.1979). The critical conclusion was that a tax refund is property within the scope of § 70(a)(5). The Bankrupt objects to the Trustee’s pro rata computation of the allocation of the refunds between the individuals and their estates. Other Courts have made clear that such an objection is without merit so long as “the formula proposed by the Trustee provides a fair allocation of the tax refund.” In re Jones, 337 F.Supp. 620, 625 (D.Minn.1971). The presumption — absent proof to the contrary — is that a formula prorating the tax return as of the date of the filing is both fair and equitable. Griffin, 1 B.R. at 654-55. The Court is equally convinced that prorating a tax refund between spouses’ estates based upon each spouse’s annual earnings is presumptively fair and equitable. The Bankrupt has offered neither proof nor argument that would support a contrary conclusion in this case. Accordingly, the Court adopts the Trustee’s allocation. The Bankrupt earned 79.4% of the spouses’ joint income. The Bankrupt’s voluntary petition was filed on the 326th day of the year. Thus, income tax refund should be allocated to his estate pursuant to the following calculation: (326/365) (0.794) ($1,160.23) = $822.79. The Bankrupt’s final argument is that a portion of the $822.79 is exempt under Maryland law relating to attachment of wages, Md.Com.Law Code Ann. § 15-602 (1975). Neither Kokoszka nor In re Brissette, 561 F.2d 779 (9th Cir. 1977), relied upon by the Bankrupt, support such a conclusion. Income tax withholding is simply not wages within the meaning of the statute, but a debt due the Bankrupt that is related" }, { "docid": "10217706", "title": "", "text": "with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under [Title 11] ... to all of the following kinds of property wherever located ... (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered .... In Kokoszka, the Supreme Court considered a Bankruptcy Trustee’s claim that an income tax refund attributable to pre-petition wages was property of the estate. The Kokoszka Court balanced the Bankrupt’s need for an unencumbered fresh financial start against the purpose of the Bankruptcy Act to secure a prompt distribution to creditors by conversion of the bankruptcy estate to cash, and held that “the income tax refund is ‘sufficiently rooted in the pre-bankruptcy past’ to be defined as ‘property’ under § 70a(5).” 417 U.S. at 648, 94 S.Ct. at 2435. Cf. Lines v. Frederick, 400 U.S. 18, 91 S.Ct. 113, 27 L.Ed.2d 124 (1970) (vacation pay is not property within the scope of § 70(a)(5)). The Bankrupt would have the Court place significance upon the distinction that the refund in question here was earned during the calendar year in which the petition was filed, rather than during the preceding year as was the case in Kokoszka. Nothing in the Supreme Court’s rationale supports the conclusion that such a distinction would dictate a contrary result. In re Griffin, 1 B.R. 653, 654-55 (Bkrtcy.M.D.Tenn.1979). The critical conclusion was that a tax refund is property within the scope of § 70(a)(5). The Bankrupt objects to the Trustee’s pro rata computation of the allocation of the refunds between the individuals and their estates. Other Courts have made clear that such an objection is without merit so long as “the formula proposed by the Trustee provides a fair allocation of the tax refund.” In re Jones, 337 F.Supp. 620, 625 (D.Minn.1971). The presumption — absent proof to the contrary — is that a formula prorating the tax return as of" }, { "docid": "13712363", "title": "", "text": "rather than during the preceding year as was the case in Kokoszka [, n]othing in the Supreme Court’s rationale supports the conclusion that such a distinction would dictate a contrary result. ... The critical conclusion was that a tax refund is property.... In re Verill, 17 B.R. at 655 (citation omitted). The second argument advanced by the debtors is that the holding of Kokoszka was tied to the statutory definition of property then in effect, and that when Congress enacted the Bankruptcy Act in 1978, Pub.L. No. 95-598, 92 Stat. 2549 (codified as amended in scattered sections of 11 U.S.C.), its intent was to undermine the legal basis of Kokoszka. Not only have the debtors failed to introduce any evidence supporting this theory, but indeed the relevant legislative history suggests just the contrary. Section 70(a)(5) of the Bankruptcy Act interpreted in Kokoszka provided that the definition of property “includ[ed] rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered.” 11 U.S.C. § 110(a)(5)(1970). The Court analyzed the policy behind the Bankruptcy Act in order to determine whether an income tax refund constituted property of the estate. In doing so, the Court turned back to its earlier holding in Segal v. Rochelle where it said, The main thrust of § 70a(5) is to secure for creditors everything of value the bankrupt may possess in alienable or lev-iable form when he files his petition. To this end the term “property” has been construed most generously and an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed. Kokoszka, 417 U.S. at 645-46, 94 S.Ct. at 2434 (quoting Segal, 382 U.S. at 379, 86 S.Ct. at 515). When Congress enacted section 541 of the Bankruptcy Act of 1978, it affirmatively adopted the Supreme Court’s analysis of property that was contained in Segal: [T]he estate is comprised of all legal or equitable interest of the debtor in property," }, { "docid": "16829726", "title": "", "text": "filing bankruptcy must make an affirmative effort to bring themselves within the exemptions provided by the Code. Exempting property is not a game of “hide and seek” wherein the debtor quietly retains all property that the trustee does not find and then moves to amend the exemption schedules when the trustee becomes aware of the property. The debtors argue that they should be allowed to amend their schedules to further their “fresh start.” This court notes that consideration of the debtors’ fresh start is one of only six factors which is relevant in considering whether leave should be granted to amend exemption schedules. In re Williams, 26 B.R. 741 (Bankr.M.D.Tenn.1982). After balancing these six factors, the court continues to find no reason justifying debtors’ failure to claim the income tax refund as exempt on their original petition. The debtors’ knowledge of the refund, their attorney’s sophistication in bankruptcy practice, the delay occasioned by the debtors in seeking an amendment, and the prejudice to the trustee, who expended time and money to reopen the case, and to creditors, who expended time and money to file proofs of claim, all outweigh the debtors’ asserted interest in an untimely exemption. Finally, debtors argue that the trustee is only allowed to recover that portion of the 1981 tax refund accumulated during his appointment. The debtors assert that the trustee’s share constitutes at most 3/rards of the refund. The court finds debtors’ position without merit. The Supreme Court has determined that income tax payments accrued prior to the filing of bankruptcy are property of the estate. Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974). And as we have previously noted, “this court can discern no reason why all income tax payments withheld from wages prior to filing would not constitute property of the estate. Absent proof that some other approach should be taken, the refund for the year of filing should simply be prorated as of the date of the filing of the petition.” In re Griffin, 1 B.R. 658, 654-655 (Bkrtcy.M.D.Tenn.1979). The trustee is, therefore, entitled to all portions" }, { "docid": "18530631", "title": "", "text": "eliminating ‘an essential element in the predatory extension of credit resulting in a disruption of employment, production, as well as consumption’ and a consequent increase in personal bankruptcies.’ ” Id. at 650, 94 S.Ct. at 2436 (footnote omitted) (emphasis in original). The Court went on to say “[t]here is every indication that Congress, in an effort to avoid the necessity of bankruptcy, sought to regulate garnishment in its usual sense as a levy on periodic payments of compensation needed to support the wage earner and his family on a week-to-week, month-to-month basis.” Id. at 651, 94 S.Ct. at 2436. Although the Supreme Court addressed the issue under the federal exemption scheme and in light of a federal garnishment statute, we are convinced that the same reasoning should apply to the Waller-stedts’ claim for exemption under the Missouri garnishment statute. See Kokoszka, All U.S. at 648-49, 94 S.Ct. at 2435. We acknowledge that no Missouri authority exists on this question of state law and we have no legislative history to guide us in interpreting section 525.030(2). Nonetheless, we believe that Missouri courts would find persuasive these decisions applying federal law to a quite similar issue. We thus hold that the Wallerstedts’ 1988 tax refunds are not earnings, and cannot be exempted from the bankruptcy estate under the Missouri garnishment statute. We find further support for our conclusion in bankruptcy court decisions issued since Kokoszka. In re Traux, 104 B.R. 471, 472 (Bankr.M.D.Fla.1989) (holding that a tax refund is not wages and thus is not exempt from the bankruptcy estate under Florida’s garnishment law); In re Linn, 52 B.R. 63, 65 (Bankr.W.D.Okla.1985) (holding that a federal income tax refund is not earnings within the meaning of Oklahoma’s garnishment statute); In re Verill, 17 B.R. 652, 655 (Bankr.D.Md.1982) (holding that excess “[i]ncome tax withholding is simply not wages within the meaning of the [state garnishment] statute”). These cases ad dress the same issues that Wallerstedts raise, and their reasoning confirms the conclusion we reach from the Supreme Court’s decision in Kokoszka. We reverse the decision of the district court and we deny the" }, { "docid": "19943951", "title": "", "text": "Murray, 31 B.R. 499, 501-02 (Bankr.E.D.Pa.1983). While the parties do not dispute that some portion of the tax refund belongs to the estate, Debtor objects to the Trustee’s allocation of the refund. Debtor argues that his wife has a one-half interest in the subject tax refund and therefore her portion is not property of the bankruptcy estate. The Trustee concedes that some portion of the tax refund belongs to Debt- or’s wife, but argues that the pre-petition portion should be allocated proportionally in accordance with the income produced by Debtor and his wife. Thus, the issue to be determined is the amount of the tax refund that constitutes property of Debt- or’s estate. This is an issue of first impression in this district. Bankruptcy courts in other districts have adopted three different approaches to determine the portion of a tax refund to which a debtor’s estate is entitled when a joint tax return has been filed with a non-debtor spouse. The majority approach holds that the tax refund from a joint tax return should be allocated proportionally between the husband and wife in accordance with their respective tax withholdings during the relevant year. See In re Kleinfeldt, 287 B.R. 291, 292 (10th Cir. BAP 2002); In re Edwards, 363 B.R. 55, 58-59 (Bankr.D.Conn.2007); In re Lock, 329 B.R. 856, 860 (Bankr.S.D.Ill.2005); In re Smith, 310 B.R. at 323; In re WDH Howell, LLC, 294 B.R. 613 (Bankr.D.N.J.2003); In re Lyall, 191 B.R. 78, 85 (E.D.Va.1996); In re Gleason, 193 B.R. 387, 389 (Bankr.D.N.H.1996). Similarly, other courts have allocated the joint tax refund proportionally in accordance with income produced, which is the approach proposed by the Trustee in this case. See In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985); In re Verill, 17 B.R. 652, 655 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334, 336 (Bankr.E.D.Va.1981); In re Colbert, 5 B.R. 646, 648-49 (Bankr.S.D.Ohio 1980). The minority approach, advocated by the Debtor, holds that joint tax refund should be allocated equally between the husband and wife without regard to tax withholdings or income produced. See In re Innis, 331 B.R. 784, 787 (Bankr.C.D.Ill.2005);" }, { "docid": "16767449", "title": "", "text": "outside its reach because it is novel or contingent or because enjoyment must be postponed (citation omitted)” Id. at 379, 86 S.Ct. at 514. In Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974), the United States Supreme Court applied its decision in Segal to an individual’s tax return and held that an income tax refund attributable to withholdings from earnings prior to filing bankruptcy constituted property of the estate. Id. at 646-648, 94 S.Ct. at 2434-2435. Segal and Kokoszka both were decided before enactment of the Bankruptcy Code. However, the legislative history of § 541 expressly states: “The result of Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), is followed, and the right to a refund is property of the estate.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 367 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 82 (1978). Subsequent Code cases involving income tax returns consistently followed and applied the Supreme Court’s ruling in Segal. See, e.g., Doan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982) (citing the Segal language that a refund is property of the estate even though the amount of the refund does not become fixed until the end of the tax year, and after the date of filing the petition in bankruptcy and stating that the applicability of the holding is not limited to loss carrybacks); In re Orndoff, 100 B.R. 516, 517 (Bankr.E.D.Cal.1989) (stating that when dealing with a contingent asset of an income tax refund for the year in which the bankruptcy petition is filed, that portion of the debtor’s tax refund attributable to prepetition withholding is considered a part of the estate); In re Sutphin, 24 B.R. 149, 150 (Bankr.E.D.Va.1982) (holding that income tax refunds are part of the bankruptcy estate to the extent that such refunds are attributable either to excessive withholding prepetition or to other prepetition income); In re DeVoe, 5 B.R. 618, 619-620 (Bankr.S.D.Ohio 1980) (holding that a debtor’s estate includes any and all interest in property he owned, claimed, or possessed as of the date" }, { "docid": "18535148", "title": "", "text": "the language of and legislative history of section 541. Applying the pro rata by days approach to the Refund of $4,522.00 yields a per diem amount of $12.39. The per diem amount multiplied by 355 days (the number of calendar days in the tax year preceding the Debtor’s bankruptcy filing) yields the amount of $4,398.45, to which the estate is entitled pending further adjustment based on the allocation between the Debtor and his spouse. Having determined the pre-petition portion of the Debt- or and his spouse’s Refund, the Court now turns to state law to determine the extent of the Debtor’s interest in this amount. C. DETERMINING EXTENT OF DEBTOR’S INTEREST IN PRE-PETITION PORTION OF TAX REFUND Determining the extent of the debt- or’s interest in the pre-petition portion of the Refund involves allocating the pre-petition portion between the Debtor and his joint-tax-filing, non-debtor spouse. The question of the extent of a debtor’s interest is one of state law and no state law in Massachusetts speaks directly to the issue. A review of cases facing this same apportionment question reveals that there are at least three approaches to accomplish this task. The first approach is to apportion the Refund based on each spouse’s withholding. In re Lyall, 191 B.R. 78 (E.D.Va.1996) (summarizing differ ent approaches). Another approach is to allocate the Refund based on the income earned by each spouse. In re Verill, 17 B.R. 652 (Bankr.D.Md.1982). The final approach, adopted by the bankruptcy in In re Innis, 331 B.R. 784, 786 (Bankr.C.D.Ill.2005), and in In re Barrow, 306 B.R. 28 (Bankr.W.D.N.Y.2004), is to split the Refund equally between the spouses, the so-called “50/50 refund rule.” It would be difficult to articulate the reason for adopting the “50/50 refund rule” better than the court in Barrow did in its decision, in which it stated: I disagree with those courts that allocate refunds in proportion either to income or amount of withholdings. The reality of the Internal Revenue Code is that the total tax is not necessarily linked to income, while the overpayment is not necessarily linked exclusively to income or" }, { "docid": "4107892", "title": "", "text": "(1) ... all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Congress intended section 541 to be .broad and inclusive. U.S. v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). Although the checks in dispute were issued post-petition, they are refunds from wages earned during pre-petition tax years and accordingly are included in the definition of estate property provided for in § 541. See In re Christie, 233 B.R. 110, 112 (10th Cir. BAP 1999), citing, Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974); see also In re Bernheim, 62 B.R. 739 (Bankr.D.N.J.1986). It is well established that if property received post-petition is “sufficiently rooted in” a debtor’s pre-petition actions and earnings, it is included in the estate. Id. The refund check for the 1999 tax year was issued on March 29, 2002 and the refund check for tax year 2000 was issued on November 16, 2001. The debtor filed his chapter 11 petition on May. 24, 2001. In accordance with Congressional intent in drafting the bankruptcy code and the case law interpreting § 541, the refund checks stemming from the debtor’s pre-petition wages are included in the debtor’s bankruptcy estate. Three Approaches The legal issue presented, whether or not a non-debtor spouse is entitled to one half of a tax overpayment, is one of first impression within the Third Circuit. Other circuits and bankruptcy courts have been presented with this issue and three lines of cases have emerged. See In re Lyall, 191 B.R. 78, 85 (E.D.Va.1996). One line of cases holds that tax refunds should be distributed in accordance with the tax withholdings of the parties. In re Kleinfeldt, 287 B.R. 291 (10th Cir. BAP 2002) (further citations omitted). A second line of cases holds that tax refunds should be distributed proportionally based on the income of the parties. In re Kestner, 9 B.R. 334 (Bankr.E.D.Va.1981) (further citations omitted). For example, if a husband earns 40% of a couple’s combined income, then he is entitled to" }, { "docid": "8307875", "title": "", "text": "a contingent business loss carryback tax refund. In deciding whether the refund, which was based on money earned prior to the filing but received subsequent to the filing, was property of the estate, the test applied by the court was whether the property interest was “sufficiently rooted in the prebankruptcy past and so little entangled with the bankrupts ability to make an unencumbered fresh start that it should be regarded as property.” The Court dealt with the fact that the refund was yet to be received by saying “... property has been construed most generously and an interest is not outside [the estate’s] reach because it is novel or contingent or because enjoyment must be postponed.” Segal, supra, 86 S.Ct. at p. 515. The court in Segal indicated that the refund should be prorated as to pre-petition and post-petition amounts and only that portion of the debtor’s tax refund attributable to pre-petition withholding would be considered part of the estate. Segal, supra, 86 S.Ct. at p. 515 n. 5. The most generally used method of calculating the proration is to look to the percentage of days before and after the date of filing. This method has been found to be the most efficient method to determine how much the estate is entitled.” (In re Rash, 22 B.R. 323, 326 (Bkrtcy.D.Kansas 1982) and has found favor with the Ninth Circuit (In re Ryerson, 739 F.2d 1423 (Ninth Circuit 1984) affirming 30 B.R. 541 (B.A.P.9th Circuit 1983)). The Supreme Court specifically applied the holdings reached in Segal to an individual tax return in Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974) and Segal (although a pre-Code decision) has been consistently followed and applied to Code cases involving income tax refunds. See: In re Sutphin, 24 B.R. 149 (Bkrtcy.E.D.Va.1982); In re Rash, 22 B.R. 323 (Bkrtcy.D.Kansas 1982); Matter of Doan, 672 F.2d 831 (11th Circuit 1982); In re Verill, 17 B.R. 652 (Bkrtcy.D.Maryland 1982); and In re Koch, 14 B.R. 64 (D.Kansas 1981). The case at hand has no facts to distinguish it from Kokoszka and Segal or" }, { "docid": "13712362", "title": "", "text": "417 U.S. at 648, 94 S.Ct. at 2435 (quotation omitted). In these cases, the pre-petition portion of the refund essentially represents excessive tax withholding which would have been other assets of the bankruptcy estate if the excessive withholdings had not been made. Every court that has considered this issue has held that the portion of an income tax refund that is based upon the pre-petition portion of a taxable year constitutes property of the bankruptcy estate. See In re Orndoff 100 B.R. 516, 518 (Bankr.E.D.Cal.1989); In re Smith, 77 B.R. 633, 635 (Bankr.N.D.Ohio, 1987); In re Shults, 28 B.R. 395, 397 (Bankr. 9th Cir.1983); In re Edmonds, 27 B.R. 468, 469 (Bankr.M.D.Tenn.1983); In re Verill, 17 B.R. 652, 654 (Bankr.D.Md.1982); In re Thomas, 14 B.R. 759, 764 (Bankr.E.D.Mich.1981); In re Koch, 14 B.R. 64, 66 (Bankr.D.Kan.1981); In re Griffin, 1 B.R. 653, 654 (Bankr.M.D.Tenn.1979). Although the debtors would have ... [this] Court place significance upon the distinction that the refund in question here was earned during the calendar year in which the petition was filed, rather than during the preceding year as was the case in Kokoszka [, n]othing in the Supreme Court’s rationale supports the conclusion that such a distinction would dictate a contrary result. ... The critical conclusion was that a tax refund is property.... In re Verill, 17 B.R. at 655 (citation omitted). The second argument advanced by the debtors is that the holding of Kokoszka was tied to the statutory definition of property then in effect, and that when Congress enacted the Bankruptcy Act in 1978, Pub.L. No. 95-598, 92 Stat. 2549 (codified as amended in scattered sections of 11 U.S.C.), its intent was to undermine the legal basis of Kokoszka. Not only have the debtors failed to introduce any evidence supporting this theory, but indeed the relevant legislative history suggests just the contrary. Section 70(a)(5) of the Bankruptcy Act interpreted in Kokoszka provided that the definition of property “includ[ed] rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and" }, { "docid": "13941753", "title": "", "text": "Lyall, and what portion should be allocated to Mrs. Lyall. It is undisputed that Mr. Lyall’s income constituted 96% of the couple’s combined income, and that withhold- ings from Mr. Lyall’s paychecks represented 98.9% of the taxes withheld for the couple during 1994. The bankruptcy court ruled that the tax refunds should be allocated equally between Mr. and Mrs. Lyall. Monti-eello appealed that ruling, contending that the tax refunds should be allocated proportionally in accordance with income produced or taxes withheld. Courts which have confronted this issue have taken three distinct positions. A majority of courts have held that tax refunds from a joint tax return should be allocated between husband and wife proportionally, in accordance with tax withholdings during the relevant year. See In re McFarland, 170 B.R. 613, 620 (Bankr.S.D.Ohio 1994); In re Honomichl, 82 B.R. 92, 94 (Bankr.S.D.Iowa1987); In re Alden, 73 B.R. 215, 216 (Bankr.N.D.Fla.1986); In re Ballou, 12 B.R. 611, 612 (Bankr.D.Kan.1981). Other courts have allocated joint tax refunds proportionally, in accordance with income produced. See In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985); In re Verill, 17 B.R. 652, 655 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334, 336 (Bankr.E.D.Va.1981); In re Colbert, 5 B.R. 646, 648-49 (Bankr.S.D.Ohio 1980). Finally, at least one court has held that joint tax refunds should be allocated equally between husband and wife without regard to tax withholdings or income produced. Bass v. Hall, 79 B.R. 653, 656 (W.D.Va.1987). In this case, the bankruptcy court relied upon Bass v. Hall, and divided the Lyall’s tax refund equally between Mr. and Mrs. Lyall. How to divide a joint tax refund between husband and wife is a question of law; therefore, the Court will review the bankruptcy court’s ruling on this issue de novo. See Hager, 188 B.R. at 196. The Court finds the position of the majority on this issue more persuasive than the position articulated in Bass. If the proper amount for taxes had been withheld from Mr. Lyall’s income during 1994, the money now refunded by the government would have been included in his bankruptcy estate as pre-petition income. If" }, { "docid": "17614532", "title": "", "text": "tax return and received his refund check. The Court concluded that the tax refund for the 1971 tax year was property of the estate because it was based upon the debtor’s prepetition earnings. Kokoszka, 417 U.S. at 648, 94 S.Ct. at 2435 (the refund was “sufficiently rooted in the pre-bankruptcy past”). Segal and Kokoszka were both decided under the old Bankruptcy Act which was superseded by the Bankruptcy Code in 1978. Has the Bankruptcy Code changed those decisions’ results? It has not. See, e.g., In re Meyers, 616 F.3d 626, 628 (7th Cir.2010) (“Courts have recognized that tax refunds received after the petition may, in some cases, represent pre-petition assets and thus are part of the bankruptcy estate.”); Benn v. Cole (In re Benn), 491 F.3d 811, 813 (8th Cir.2007) (“A debtor’s anticipated tax refund, to the extent it is attributable to events occurring prior to the filing of the petition for bankruptcy, is part of the bankruptcy estate.”); Barow-sky v. Serelson (In re Barowsky), 946 F.2d 1516, 1518 (10th Cir.1991) (“the pre-petition portion of the refund essentially represents excessive tax withholding which would have been other assets of the bankruptcy estate if the excessive withholdings had not been made”); Doan v. Hudgins (In re Doan), 672 F.2d 831, 833 (11th Cir.1982) (although Segal v. Rochelle was decided under Bankruptcy Act, it applies to Bankruptcy Code; tax refunds are property of estate). In this contested matter, the Debtors’ federal and state refunds for 2008 are property of their joint chapter 7 bankruptcy estate. Because the petition was filed on January 19, 2009, the full amount of the refunds attributable to 2008 is estate property and no allocation between the prepetition and postpetition periods is necessary. See, e.g., In re Meyers, 616 F.3d at 627 (the Seventh Circuit discusses possible refund allocation methods between “the pre- and post-petition line” and notes “occasionally the job becomes challenging”). J. Determination of a Debtor’s Exemptions. The Supreme Court has long held that exemptions are determined on the bankruptcy filing date. White v. Stump, 266 U.S. 310, 45 S.Ct. 103, 69 L.Ed. 301 (1924). In" }, { "docid": "8307876", "title": "", "text": "calculating the proration is to look to the percentage of days before and after the date of filing. This method has been found to be the most efficient method to determine how much the estate is entitled.” (In re Rash, 22 B.R. 323, 326 (Bkrtcy.D.Kansas 1982) and has found favor with the Ninth Circuit (In re Ryerson, 739 F.2d 1423 (Ninth Circuit 1984) affirming 30 B.R. 541 (B.A.P.9th Circuit 1983)). The Supreme Court specifically applied the holdings reached in Segal to an individual tax return in Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974) and Segal (although a pre-Code decision) has been consistently followed and applied to Code cases involving income tax refunds. See: In re Sutphin, 24 B.R. 149 (Bkrtcy.E.D.Va.1982); In re Rash, 22 B.R. 323 (Bkrtcy.D.Kansas 1982); Matter of Doan, 672 F.2d 831 (11th Circuit 1982); In re Verill, 17 B.R. 652 (Bkrtcy.D.Maryland 1982); and In re Koch, 14 B.R. 64 (D.Kansas 1981). The case at hand has no facts to distinguish it from Kokoszka and Segal or their modern counterparts. There can be no doubt that the income tax refund is property of the estate. However, debtor has a tax refund that arose as a result of 292 days of withholding before the filing and 73 days of withholding after the filing of the voluntary petition on October 19, 1988. Therefore the estate is entitled to 292/365th of the refund and the debtor is entitled to 73/365th of the refund. Of course, debtor is entitled to claim her exemptions against that portion of the refund deemed to be within the bankruptcy estate. B. Dean Witter Account There appears to be no dispute as to whether the monies in this account are property of the estate. The only information submitted to the court concerning the $110 account at Dean Witter is found in the document titled Objection to Exemptions filed by the trustee on December 19, 1988. The trustee states in that document that “the debtor stated at the December 14, 1988 [Section] 341 meeting of creditors that the funds on deposit with" }, { "docid": "10217708", "title": "", "text": "the date of the filing is both fair and equitable. Griffin, 1 B.R. at 654-55. The Court is equally convinced that prorating a tax refund between spouses’ estates based upon each spouse’s annual earnings is presumptively fair and equitable. The Bankrupt has offered neither proof nor argument that would support a contrary conclusion in this case. Accordingly, the Court adopts the Trustee’s allocation. The Bankrupt earned 79.4% of the spouses’ joint income. The Bankrupt’s voluntary petition was filed on the 326th day of the year. Thus, income tax refund should be allocated to his estate pursuant to the following calculation: (326/365) (0.794) ($1,160.23) = $822.79. The Bankrupt’s final argument is that a portion of the $822.79 is exempt under Maryland law relating to attachment of wages, Md.Com.Law Code Ann. § 15-602 (1975). Neither Kokoszka nor In re Brissette, 561 F.2d 779 (9th Cir. 1977), relied upon by the Bankrupt, support such a conclusion. Income tax withholding is simply not wages within the meaning of the statute, but a debt due the Bankrupt that is related to the amount of wages earned. As the Kokoszka Court observed in a related context, “Just because some property interest had its source in wages .. . does not give it special protection, for to do so would exempt from the bankrupt estate most of the property owned by many bankrupts, such as savings accounts and automobiles which had their origin in wages.” 417 U.S. at 648, 94 S.Ct. at 2435 (quoting Kokoszka v. Belford, 479 F.2d 990, 995 (2d Cir. 1973)). The Court holds therefore that none of the refund allocated to the estate is subject to exemption under the state wage attachment law. For the aforegoing reasons, it is this 10th day of February, 1982, by the United States Bankruptcy Court for the District of Maryland, ORDERED that the Bankrupt, IRA HURON VERILL, JR., should, and he is hereby directed to pay EIGHT HUNDRED TWENTY-TWO DOLLARS and SEVENTY NINE CENTS ($822.79) to SUSAN M. VAN LIESHOUT, SUBSTITUTE TRUSTEE, within thirty (30) days of the date hereof; and it is FURTHER ORDERED that a" }, { "docid": "2293093", "title": "", "text": "trustee in accordance with § 363 or exempted by the debtor under § 522; and (3) that the property has more than inconsequential value or benefit to the estate. See Alofs Mfg. Co. v. Toyota Mfg., Ky., Inc. (In re Alofs Mfg. Co.), 209 B.R. 83, 91 (Bankr.W.D.Mich.1997) (citing McClatchey v. Ohio Public Employees Deferred Compensation Program (In re Matheney), 138 B.R. 541, 548 (Bankr.S.D.Ohio 1992)); see also Kerney v. Capital One Fin. Corp. (In re Sims), 278 B.R. 457, 475 (Bankr.E.D.Tenn.2002) (to be recoverable under § 542(a), property must be “exemptible by the debtor or usable, sellable, or leasable by the trustee under § 363”). The chapter 7 trustee, as the party seeking turnover, bears the burden of proving each element by a preponderance of the evidence. United States v. Chalmers (In re Wheeler), 252 B.R. 420, 425 (W.D.Mich.2000) (citing In re Alofs Mfg. Co., 209 B.R. at 89-91). The Debtors do not dispute that the federal income tax refund is property of their bankruptcy estate that may be used, sold or leased by the chapter 7 trustee. Property of the estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1); see United States v. Whiting Pools, Inc., 462 U.S. 198, 203, 103 S.Ct. 2309, 2312, 76 L.Ed.2d 515 (1983). This broad definition unquestionably includes income tax refunds based upon a debtor’s prepetition earnings or losses. See Kokoszka v. Belford, 417 U.S. 642, 648, 94 S.Ct. 2431, 2435, 41 L.Ed.2d 374 (1974); Araj v. Kohut (In re Araj), 371 B.R. 240, 243-44 (E.D.Mich.2007) (noting that “every court that has considered this issue has held that the portion of an income tax refund that is based upon the pre-petition portion of a taxable year constitutes property of the bankruptcy estate”) (citations omitted). In this instance, the entire refund accrued before the filing of the bankruptcy case. It is also undisputed that the federal tax refund has value for the estate. The Debtors argue, however, that Attorney Beck advised them that $1,600 of their refund could be exempted," }, { "docid": "18535147", "title": "", "text": "periods. See In re Orndoff, 100 B.R. 516 (Bankr.E.D.Cal.1989); Barowsky, 946 F.2d at 1518 n. 1; In re Martell, 349 B.R. 233, 235 (Bankr.D.Idaho 2005); In re Edwards, 363 B.R. 55, 59 (Bankr.D.Conn.2007). This method of calculating the portion of a refund attributable to the estate involves dividing a debtor’s refund over a 365-day year and multiplying the resulting number by the number of days from the beginning of the year to the petition date. A tax year is exactly that, a tax year, therefore, in determining the amount of the refund that becomes property of the Debtor’s estate, the Court will not dissect the Debt- or’s tax return to determine the portion of the Debtor’s refund attributable to actual pre-petition withholding or to particular deductions, credits, individual business income and losses or exemptions. The Court is mindful that a pro rata by days approach may not yield a perfect result in every situation, but it is better than any other available approach. It provides a bright-line test that effectuates Congress’s intent as expressed in the language of and legislative history of section 541. Applying the pro rata by days approach to the Refund of $4,522.00 yields a per diem amount of $12.39. The per diem amount multiplied by 355 days (the number of calendar days in the tax year preceding the Debtor’s bankruptcy filing) yields the amount of $4,398.45, to which the estate is entitled pending further adjustment based on the allocation between the Debtor and his spouse. Having determined the pre-petition portion of the Debt- or and his spouse’s Refund, the Court now turns to state law to determine the extent of the Debtor’s interest in this amount. C. DETERMINING EXTENT OF DEBTOR’S INTEREST IN PRE-PETITION PORTION OF TAX REFUND Determining the extent of the debt- or’s interest in the pre-petition portion of the Refund involves allocating the pre-petition portion between the Debtor and his joint-tax-filing, non-debtor spouse. The question of the extent of a debtor’s interest is one of state law and no state law in Massachusetts speaks directly to the issue. A review of cases facing" }, { "docid": "16767450", "title": "", "text": "F.2d 831, 833 (11th Cir.1982) (citing the Segal language that a refund is property of the estate even though the amount of the refund does not become fixed until the end of the tax year, and after the date of filing the petition in bankruptcy and stating that the applicability of the holding is not limited to loss carrybacks); In re Orndoff, 100 B.R. 516, 517 (Bankr.E.D.Cal.1989) (stating that when dealing with a contingent asset of an income tax refund for the year in which the bankruptcy petition is filed, that portion of the debtor’s tax refund attributable to prepetition withholding is considered a part of the estate); In re Sutphin, 24 B.R. 149, 150 (Bankr.E.D.Va.1982) (holding that income tax refunds are part of the bankruptcy estate to the extent that such refunds are attributable either to excessive withholding prepetition or to other prepetition income); In re DeVoe, 5 B.R. 618, 619-620 (Bankr.S.D.Ohio 1980) (holding that a debtor’s estate includes any and all interest in property he owned, claimed, or possessed as of the date of filing his voluntary petition in bankruptcy, including all of the debtor’s tax refund attributable to prepetition withholdings). When the Debtor in this case filed his bankruptcy petition on June 1,1988, he had the right to a refund of any overpayment which might arise by computation of his 1988 tax return at the close of the tax year. The right to that portion of any refund attributable to payments made before the June 1, 1988, petition date became property of the bankruptcy estate — even though it was a contingent asset which could not be enjoyed until the close of the 1988 tax year. See Segal, 382 U.S. at 379, 86 S.Ct. at 515. The United States cites In re Mirman, 98 B.R. 742 (Bankr.E.D.Va.1989) and In re Turboff, 93 B.R. 523 (Bankr.S.D.Tex.1988) to support its position that tax liability for a postpetition year is not collectible from the estate. Both Mirman and Turboff are distinguishable from the instant case. They dealt with the debtor’s right under 26 U.S.C. § 1398 to elect to divide" }, { "docid": "4774772", "title": "", "text": "the refunds and the amount of the refunds becomes certain at the close of the tax year. Moreover, Segal has been consistently followed and applied to Code cases involving income tax refunds. See Matter of Doan, 672 F.2d 831 (11th Cir. 1982); In re Koch, 14 B.R. 64 (Bkrtcy.D.Kan.1981); In re Devoe, 5 B.R. 618 (Bkrtcy.S.D.Ohio 1980); Matter of Nichols, 4 B.R. 711, 6 B.C.D. 597 (Bkrtcy.E.D.Mich.1980). This Court finds, therefore, that the income tax refunds herein are property of the debtors’ estates. However, only that portion of the refund attributable to pre-petition withholding is properly included in the estate. Segal made clear that post-petition property inures to the benefit of the debtors’ fresh start. Segal also indicated that a pro-rationing of the refund was proper. In footnote 5, the court stated: “So far as losses by the bankrupt after filing but before the year’s end might increase the refund — a situation not claimed to be present in this case — the Court of Appeals suggested ‘[a] proration of the refund in the ratio of the losses before and after the filing date ...” Thus far, courts have prorated refunds solely on the basis of the number of calendar days before and after the petition, rather than in the ratio of actual excessive withholding before and after the petition. Thus, in In re Koch, supra, at pg. 66, the court found the trustee entitled to 364/365 of the refund where the bankruptcy petition was filed on December 30th. Accord, In re Devoe, supra, at pg. 620; Matter of Doan, supra, at pg. 832. The debtors herein argue that a calendar day proration could result in an inequitable division of the refund. A calendar day formula is based on the premise that excessive withholding is proportional per day. Yet a change in income, marital status, or number of dependents would result in un-proportional withholding. For example, where a debtor works only the first 6 months of the year, all of the excessive withholding would occur during those months. A debtor who filed a petition during the latter six months of" }, { "docid": "13712361", "title": "", "text": "are not persuaded that this difference renders Kokoszka inapplicable. Here, the district court prorated the tax refund between that pre-petition and post-petition portion of the tax year. In Segal, the Supreme Court anticipated this very approach and suggested, in dicta, that if the refund for a tax year was increased because of losses incurred after the filing of the bankruptcy petition, then the court should consider a proration of the refund between the pre-petition and post-petition portions of the tax year at issue. Segal, 382 U.S. at 380 n. 5, 86 S.Ct. at 515 n. 5. The debtors fail to advance a persuasive argument as to why the analysis of Kokoszka should not apply to the instant case. The portion of the tax refund attributable to the pre-petition portion of the taxable year “is not the weekly or other periodic income required by a wage earner for his basic support ... [and] to deprive him of it will not hinder his ability to make a fresh start unhampered by the pressure of preexisting debt.” Kokoszka, 417 U.S. at 648, 94 S.Ct. at 2435 (quotation omitted). In these cases, the pre-petition portion of the refund essentially represents excessive tax withholding which would have been other assets of the bankruptcy estate if the excessive withholdings had not been made. Every court that has considered this issue has held that the portion of an income tax refund that is based upon the pre-petition portion of a taxable year constitutes property of the bankruptcy estate. See In re Orndoff 100 B.R. 516, 518 (Bankr.E.D.Cal.1989); In re Smith, 77 B.R. 633, 635 (Bankr.N.D.Ohio, 1987); In re Shults, 28 B.R. 395, 397 (Bankr. 9th Cir.1983); In re Edmonds, 27 B.R. 468, 469 (Bankr.M.D.Tenn.1983); In re Verill, 17 B.R. 652, 654 (Bankr.D.Md.1982); In re Thomas, 14 B.R. 759, 764 (Bankr.E.D.Mich.1981); In re Koch, 14 B.R. 64, 66 (Bankr.D.Kan.1981); In re Griffin, 1 B.R. 653, 654 (Bankr.M.D.Tenn.1979). Although the debtors would have ... [this] Court place significance upon the distinction that the refund in question here was earned during the calendar year in which the petition was filed," } ]

[ { "docid": "23301526", "title": "", "text": "84 F.3d 1154, 1158 (9th Cir.1996). The district court did not abuse its discretion in admitting the evidence. Prior convictions for drug offenses are probative of veracity, which was at issue. United States v. Alexander, 48 F.3d 1477, 1488 (9th Cir.), cert. denied, — U.S. -, 116 S.Ct. 210, 133 L.Ed.2d 142 (1995). The evidence was not impermissibly stale. “By its terms, Rule 609 allows for admissibility of such a prior conviction even where the defendant has been released for up to ten years.” United States v. Browne, 829 F.2d 760, 763 (9th Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988). We need not address whether Cordoba’s prior conviction was admissible under Rule 404(b). We have held that when a prior conviction is properly admitted under Rule 404(b), then any error in admitting such conviction under Rule 609(a)(1) is harmless. See United States v. Mehrmanesh, 689 F.2d 822, 831 n. 10 & 833 (9th Cir.1982). We agree with the Eighth Circuit that the converse is true: when a prior conviction was properly admitted under Rule 609(a)(1), any error in admitting the conviction under Rule 404(b) is harmless unless the record reflects evidence that the defendant would not have testified but for the court’s Rule 404(b) ruling. See United States v. Smith, 49 F.3d 475, 478 (8th Cir.1995). m. Cordoba also appeals the district court’s admission of expert testimony concerning the modus operandi of drug traffickers. At trial, the government’s expert testified that sophisticated narcotics traffickers do not entrust 300 kilograms of cocaine to someone who does not know what he is transporting. We review a district court’s decision to admit expert testimony for abuse of discretion. United States v. VonWillie, 59 F.3d 922, 928-29 (9th Cir.1995). A trial court abuses its discretion when it bases its decision on an erroneous view of the law. United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir.1993). If specialized knowledge will assist the trier of fact in understanding the evidence or determining an issue, a qualified expert witness may provide opinion testimony on the issue in question. Fed.R.Evid." } ]

[ { "docid": "21096147", "title": "", "text": "to August 5, 1994. Emmanuel disclosed to her that during this time period he was selling “three or four ounces a week” which she understood to mean methamphetamine. Prior bad acts may be admitted under Rule 404(b) to demonstrate motive, opportunity, intent, preparation, common plan, knowledge, identity, or absence of mistake or accident. To be admissible, evidence must also meet the following conditions: (1) it must be relevant to a material issue; (2) the bad act must be reasonably similar in kind and close in time to the crime charged; (3) it must be sufficient to support a jury finding that the defendant committed the prior act; and (4) the probative value of the evidence must outweigh its prejudicial effect. United States v. Edwards, 91 F.3d 1101, 1103 (8th Cir.1996) (citing United States v. Jones, 990 F.2d 1047, 1050 (8th Cir.), cert. denied, 510 U.S. 1048, 114 S.Ct. 699, 126 L.Ed.2d 666 (1994)). See also United States v. Dobynes, 905 F.2d 1192, 1194-95 (8th Cir.1990). The district court has broad discretion to admit evidence of other bad acts under Rule 404(b) unless the evidence tends to prove only the defendant’s criminal disposition. United States v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995) (citing United States v. Sykes, 977 F.2d 1242, 1246 (8th Cir.1992)). We review the district court’s evidentiary ruling on the admission of Rule 404(b) evidence under the abuse of discretion standard. Edwards, 91 F.3d at 1103 (citing United States v. Huff, 959 F.2d 731, 736 (8th Cir.), cert. denied, 506 U.S. 855, 113 S.Ct. 162, 121 L.Ed.2d 110 (1992)). Kissel’s testimony regarding Emmanuel’s distribution of methamphetamine from late 1993 to February 8,1994, is admissible under Rule 404(b). The- district court did not abuse its discretion in admitting Kissel’s testimony regarding Emmanuel’s uncharged methamphetamine distribution. Kissel’s testimony concerning Emmanuel’s prior drug activity was admissible since it was relevant; its probative value outweighed its prejudicial effect; the prior drug activity was reasonably similar in kind and close in time to the crime charged; and the record indicates the evidence was sufficient to support a jury finding that Emmanuel engaged" }, { "docid": "10309500", "title": "", "text": "reasonably found that Macedo actually possessed the drugs, as well as constructively possessed them. See United States v. Perlaza, 818 F.2d 1354, 1360 (7th Cir.1987) (finding that evidence of registration and control over a hotel room containing drugs may be sufficient to find constructive possession of drugs); see also United States v. Garrett, 903 F.2d 1105, 1112 (7th Cir.1990) (holding that constructive possession is sufficient to sustain a conviction under 21 U.S.C. § 841(a)(1)). Furthermore, the jury could have reasonably found that Ma-cedo intended to distribute the methamphetamine based on the large quantity seized and the testimony of his co-conspirators. C. Admission of Prior Bad Act Evidence Under F.R.E. 404(b) Defendant Contreras challenges the decision of the district court to admit the testimony of Officer Vasquez concerning two prior drug sales which occurred in 1992 as dissimilar and too remote in time. We review a district court’s decision to admit evidence pursuant to Rule 404(b) of the Federal Rules of Evidence for abuse of discretion. United States v. Anifowoshe, 307 F.3d 643, 646 (7th Cir.2002). Rule 404(b) prohibits the use of a defendant’s prior bad acts as propensity evidence while permitting its use to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). We have long recognized that the permissible use of prior bad act evidence to prove intent or lack of mistake may have the potential impermissible side effect of allowing the jury to infer criminal propensity. See United States v. Beasley, 809 F.2d 1273, 1278 (7th Cir.1987) (“When the same evidence has legitimate and forbid den uses, when the introduction is valuable yet dangerous, the district judge has great discretion”). To address these twin concerns, we have reasoned that evidence is properly admitted if the government is able to show that: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close in time to be relevant to the matter in issue, (3) the evidence is sufficient to" }, { "docid": "11293619", "title": "", "text": "this evidence only for its bearing, if any, on the question of the Defendant’s intent, knowledge, identity, absence of mistake, absence of accident and for no other purpose. You may not consider this evi dence of guilt of the crime for which the Defendant is now on trial. Hardrick had included the model instruction in his proposed jury instructions and did not object to the instruction as given. The jury found Hardrick guilty on both counts. The district court sentenced Har-drick to 120 months in prison, a below-Guidelines sentence. Hardrick timely appealed. II. We review for abuse of discretion the district court’s admission of prior acts evidence. United States v. Ramirez-Robles, 386 F.3d 1234, 1242 (9th Cir.2004). We also review for abuse of discretion the district court’s balancing under Federal Rule of Evidence 403 of the probative value of the prior acts evidence against the danger of unfair prejudice to the defendant. United States v. Curtin, 489 F.3d 935, 943 (9th Cir.2007) (en banc). Evidence of a defendant’s prior conviction, wrong, or other act is inadmissible to prove the defendant’s bad character or propensity to commit the charged offenses. United States v. Vo, 413 F.3d 1010, 1017 (9th Cir.2005). However, evidence of a prior act is admissible for non-propensity purposes, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b). Rule 404(b) evidence is admissible if it satisfies a four-part test. United States v. Montgomery, 150 F.3d 983, 1000 (9th Cir.1998). The proponent of the 404(b) evidence must show that the evidence “(1) proves a material element of the offense for which the defendant is now charged, (2) if admitted to prove intent, is similar to the offense charged, (3) is based on sufficient evidence, and (4) is not too remote in time.” Ramirez-Robles, 386 F.3d at 1242. Rule 404(b) evidence offered to prove knowledge “need not be similar to the charged act as long as the prior act was one which would tend to make the existence of the defendant’s knowledge more probable than it would be without the evidence.”" }, { "docid": "372352", "title": "", "text": "Sneezer next claims that the district court erred in admitting evidence of a prior sexual assault he committed. The trial court’s decision to admit evidence under Federal Rule of Evidence 404(b) is reviewed for an abuse of discretion. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir.1987). This court regards Rule 404(b) as an inclusionary rule—“evidence of other crimes is inadmissible under this rule only when it proves nothing but the defendant’s criminal propensities.” United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). Under the rule, relevant evidence of other crimes is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Id. To admit evidence for one of the permissible purposes, (1) there must be sufficient proof for the jury to find that the defendant committed the prior act; (2) the prior act must not be too remote in time; (3) if used to prove intent, the prior offense must be similar to the charged offense; (4) the prior act must be introduced to prove a material issue; and (5) the probative value must outweigh any prejudice. United States v. Ross, 886 F.2d 264, 267 (9th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1818, 108 L.Ed.2d 947 (1990). The government offered evidence of a 1987 rape to show motive, intent, plan, knowledge and identity. The 1987 incident is nearly identical to Sneezer’s actions in this case. In the prior incident, he snatched a woman off of the main highway on the Navajo Indian Reservation on which she was walking and forced her into his vehicle from a highway. He drove her to a secluded place a couple of miles down the road, pulled her out of the car and onto the ground, removed both their clothes, laid on top of her, and tried to rape her. Even though the previous case was eventually reversed on appeal, there was sufficient evidence for a jury to find that he had committed the offense. This court reversed his conviction because the" }, { "docid": "372365", "title": "", "text": "escaped. Under these facts, I conclude that the two counts of aggravated sexual abuse form part of a single course of conduct with a common criminal objective — rape — and represent essentially the same harm. II The majority holds that evidence of a rape three years prior to this incident was admissible under Rule 404(b). I fail to see any other purpose for the introduction of the five-year-old attempted rape charge than to demonstrate that the defendant acted in conformity with that prior bad act on this occasion. Therefore, I respectfully dissent. I agree that Rule 404(b) is inclusionary. That is, evidence of prior crimes is not excluded unless its sole purpose is to “prove the character of a person to show action in conformity therewith.” Fed.R.Evid. 404(b); accord United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). Under the law of this circuit, however, evidence of a prior bad act can only be introduced to prove a material issue, or essential element, of the crime. United States v. Ross, 886 F.2d 264, 267 (9th Cir.1989); United States v. Houser, 929 F.2d 1369, 1373 (9th Cir.1990). The majority has failed to identify convincingly what material elements of the crime this evidence goes to prove. The trial court expressly held that knowledge and identity were not issues in dispute. The majority contends that the fact that Sneezer had previously been arrested and charged with attempted rape shows “motive, intent and the fact of a plan.” Opinion at 924. Those words, however, are not talismanic, the mere utterance of which enables the prosecution to introduce evidence of a prior crime. I am forced to conclude that the sole purpose for the introduction of this evidence was to show conformity with a prior bad act. Intent was not a disputed issue in this case. Neither crime charged is a specific intent crime. In fact, the trial court refused to instruct the jury on voluntary intoxication because it held that kidnapping under 18 U.S.C. § 1201(a)(2) is a general intent" }, { "docid": "5808741", "title": "", "text": "and by Brasch. The jury was instructed to view her testimony with caution and was told that the arguments of counsel were not evidence. There was no plain error in allowing this argument. III. Evidence of Other Acts Jackson moved the court to prohibit any mention of his alleged membership in the Crips gang, his prior arrest for cocaine possession at a notorious nightclub and any pri- or drug sales. After hearing argument, the court ruled that his gang membership and prior arrest could not be mentioned but that incidents of prior drug sales could be admitted “as [they] relate[ ] to issues concerning [the conspiracy count] in this matter.” Jackson contends that the district court abused its discretion by admitting this evidence. He argues that the evidence was inadmissible under Federal Rules of Evidence 404(b) and 403. We review for abuse of discretion the court’s decision to admit this evidence, but we consider de novo whether evidence is directly relevant to the crime charged or relevant only to “other crimes.” United States v. Santiago, 46 F.3d 885, 888 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 2617, 132 L.Ed.2d 860 (1995). Under Rule 404(b), evidence of “other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). It may, however, be admitted for other purposes, including “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Id. Rule 404(b) “is a rule of inclusion.” United States v. Meling, 47 F.3d 1546, 1557 (9th Cir.1995) (quotation omitted). Unless the evidence of other crimes tends only to prove propensity, it is admissible. United States v. Ayers, 924 F.2d 1468, 1473 (9th Cir.1991); see also Meling, 47 F.3d at 1557 (“[E]vidence is admissible under Rule 404(b) if it is relevant to an issue in the case other than [the] defendant’s criminal propensity”). We must consider several factors to determine if Rule 404(b) permits admission, such as whether the evidence proves a material element of the offense charged, whether it is similar to" }, { "docid": "15379999", "title": "", "text": "victims. The district court granted Hadley’s motion to sever, and the subsequent trial dealt only with counts seven through eleven of the superseding indictment. Counts seven through nine charged Hadley with aggravated sexual abuse, attempted aggravated sexual abuse, and abusive sexual contact. These charges arose from allegations that Hadley had committed forcible anal intercourse and other acts of sexual abuse against Roy, a student at the BIA school. Roy testified at trial to three separate incidents of sexual molestation by Hadley in late 1987 and early 1988. In addition, over Hadley’s objection, the district court allowed other government witnesses to testify that Hadley had forcibly sodomized them when they were minors. The government also presented the expert testimony of Dr. Rosenzweig, a child psychiatrist, who testified on the issue of general behavior characteristics exhibited by victims of child sexual abuse. The jury found Hadley guilty of the three crimes perpetrated against Roy. Hadley was acquitted on the remaining two counts, which involved less serious allegations by two other students. The district judge sentenced Hadley to 30 years’ imprisonment for his conviction of aggravated sexual abuse as charged in count seven, and to 108 months for the convictions on counts eight and nine. The judge ordered that the sentences for counts eight and nine be served consecutively to the sentence for count seven, and imposed fines totaling $20,000. II Hadley first argues that the district court should not have admitted the prior bad act testimony of witnesses who testified that Hadley had sodomized and sexually abused them when they were children. We review a district court’s decision to admit evidence of prior bad acts under Fed. R.Evid. 404(b) only for an abuse of discretion. United States v. Brown, 873 F.2d 1265, 1267 (9th Cir.1989). Indeed, we have held that Rule 404(b) is an “inclusionary rule,” under which evidence is inadmissible “only when it proves nothing but the defendant’s criminal propensities.” United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). Therefore, the district judge is “accorded wide discretion in" }, { "docid": "372351", "title": "", "text": "offense is a subset of the greater, the comparison does not depend upon the facts of the particular case. Rather, the elements of each crime must be compared using the text of the statutes involved without regard to the “inferences that may be drawn from evidence introduced at trial.” Schmuck v. United States, 489 U.S. 705, 720, 109 S.Ct. 1443, 1452, 103 L.Ed.2d 734 (1989). A textual comparison of 18 U.S.C. §§ 2241(a) and 2242(1) indicates that § 2242(1) is not a subset of § 2241(a). Aggravated sexual abuse, § 2241(a), requires force or fear of kidnapping, serious bodily injury, or death. Sexual abuse, § 2242(1), does not require fear of kidnapping, serious bodily injury, or death. Instead, § 2242(1) requires any other type of fear. Because these crimes deal with distinct types of fear, sexual abuse is not a subset of aggravated sexual abuse. Thus, the district court did not err in refusing Sneezer a lesser included offense instruction. III. The District Court did not Err in Admitting Evidence of a Prior Bad Act. Sneezer next claims that the district court erred in admitting evidence of a prior sexual assault he committed. The trial court’s decision to admit evidence under Federal Rule of Evidence 404(b) is reviewed for an abuse of discretion. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir.1987). This court regards Rule 404(b) as an inclusionary rule—“evidence of other crimes is inadmissible under this rule only when it proves nothing but the defendant’s criminal propensities.” United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). Under the rule, relevant evidence of other crimes is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Id. To admit evidence for one of the permissible purposes, (1) there must be sufficient proof for the jury to find that the defendant committed the prior act; (2) the prior act must not be too remote in time; (3) if used to prove intent, the prior offense must be similar to the" }, { "docid": "2248590", "title": "", "text": "that his sentence be reversed in light of Kimbrough v. United States, — U.S.-, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). A. The district court’s evidentiary rulings We review the district court’s evi-dentiary rulings for an abuse of discretion, United States v. Owens, 424 F.3d 649, 653 (7th Cir.2005), including its decision to admit evidence of “other acts” under Federal Rule of Evidence 404(b), United States v. Price, 516 F.3d 597, 603 (7th Cir.2008), and its decision to admit evidence under the “intricately related” doctrine, United States v. Wantuch, 525 F.3d 505, 517 (7th Cir.2008). 1. Testimony about other drug deals with Haynes The district court justified its admission of testimony about other drug transactions between Harris and Haynes because such testimony was “intricately related” to the conduct charged in the indictment, see id. at 517; United States v. Strong, 485 F.3d 985, 989-90 (7th Cir.2007), and because the evidence was admissible under Federal Rule of Evidence 404(b). Harris contends that the district court improperly admitted the testimony because it was not intricately related to the charged conduct and because it was improper propensity evidence. See Fed.R.Evid. 404(b); United States v. Simpson, 479 F.3d 492, 496-97 (7th Cir. 2007). Rule 404(b) prevents the admission of evidence of other crimes, wrongs, or acts to prove that a person acted in conformity with his prior conduct. Fed. R.Evid. 404(b). In other words, “Rule 404(b) plainly prohibits the government from introducing evidence of prior bad acts to show that the defendant’s character is consistent with a propensity to commit the charged crime.” Simpson, 479 F.3d at 497. But evidence may be properly admitted under Rule 404(b) for a non-propensity purpose, such as to prove “ ‘motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’” United States v. Sebolt, 460 F.3d 910, 916 (7th Cir.2006) (quoting Fed. R.Evid. 404(b)). A district court properly admits evidence of prior acts under Rule 404(b) if: “(1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged; (2) the evidence shows that the other" }, { "docid": "15380000", "title": "", "text": "30 years’ imprisonment for his conviction of aggravated sexual abuse as charged in count seven, and to 108 months for the convictions on counts eight and nine. The judge ordered that the sentences for counts eight and nine be served consecutively to the sentence for count seven, and imposed fines totaling $20,000. II Hadley first argues that the district court should not have admitted the prior bad act testimony of witnesses who testified that Hadley had sodomized and sexually abused them when they were children. We review a district court’s decision to admit evidence of prior bad acts under Fed. R.Evid. 404(b) only for an abuse of discretion. United States v. Brown, 873 F.2d 1265, 1267 (9th Cir.1989). Indeed, we have held that Rule 404(b) is an “inclusionary rule,” under which evidence is inadmissible “only when it proves nothing but the defendant’s criminal propensities.” United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). Therefore, the district judge is “accorded wide discretion in deciding whether to admit such evidence.” Id. Rule 404(b) allows the introduction of prior bad acts “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). We have held that evidence is admissible under Rule 404(b) if: (1) sufficient proof exists for the jury to find that the defendant committed the prior act; (2) the prior act was not too remote in time; and (3) the prior act is introduced to prove a material issue in the case. United States v. Ross, 886 F.2d 264, 267 (9th Cir.1989) (Ross), cert. denied, — U.S. -, 110 S.Ct. 1818, 108 L.Ed.2d 947 (1990); United States v. Spillone, 879 F.2d 514, 518-20 (9th Cir.1989) (Spillone), cert. denied, — U.S. -, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990). In addition, if used to prove intent, the prior act must be similar to the offense charged. Id. at 519. First, we hold that sufficient evidence of the prior bad acts existed for a jury to “reasonably conclude that the act[s] occurred and" }, { "docid": "13825329", "title": "", "text": "total scheme” for selling the cars. See United States v. Berlin, 472 F.2d 13, 15 (9th Cir.1973). Other evidence before the jury permitted it to conclude that Criswell had willfully participated in that scheme. See 18 U.S.C. § 2; United States v. McDaniel, 545 F.2d 642, 644 (9th Cir.1976). The jury thus could have concluded beyond a reasonable doubt that Criswell had abetted the interstate transportation of the cars. V. Admission of Codefendant’s Testimony Daly objects to the admission of testimony by Shelly Ginger, a codefendant, but not a party to this appeal. Ginger testified that she and Criswell went to Daly’s car lot, where she received a car known by Criswell and Ginger to be stolen. Daly challenged the relevancy of this testimony, arguing that it referred to Ginger’s acquisition of a stolen vehicle that had not been named in the conspiracy count, and that knowledge of the stolen nature of the cars named in the substantive counts was not an element of the offenses charged therein. Fed.R.Evid. 404(b) provides that evidence of “other crimes, wrongs, or acts” is admissible to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Such testimony is inadmissible “only when it proves nothing but the defendant’s criminal propensities.” United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981) (noting that “[t]his circuit has adopted the position that Rule 404(b) is an inclusionary rule”); see also United States v. Herrell, 588 F.2d 711, 714 (9th Cir.1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979). Following this rule, we find the testimony admissible as circumstantial evidence that Daly knew the cars he sold for Criswell were stolen and (in reference to the substantive counts) that their title certificates were false. We note, moreover, that the district judge’s carefully worded limiting instruction, which warned the jury that they were to use the testimony only to determine whether Criswell and Daly knew they were dealing in stolen cars, demonstrates that he considered the effect" }, { "docid": "12720741", "title": "", "text": "evidence is introduced to prove an element of the charged offense; and (4) the probative value outweighs any prejudice to the defendant. United States v. Vaccaro, 816 F.2d 443, 452-53 (9th Cir.1987). This circuit has repeatedly stated that Rule 404(b) is “an inclusionary rule,” which admits evidence of other circumstances unless the evidence tends only to prove criminal disposition. United States v. Ford, 632 F.2d 1354, 1375 (9th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed.2d 369 (1981); United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). This interpretation vests the trial court with “wide discretion in deciding whether to admit such evidence.” Diggs, 649 F.2d at 737. The prosecutor contends that testimony that the defendant ordered employees to remove the carpet reveals his intent to conceal assets of the bankruptcy. Certainly, it corroborates the government’s theory that the defendant planned to use Bedder Nights’ assets to open Waterbed Liquidators, even if the prosecution could not establish that this particular item was part of the bankrupt corporation. The act occurred during the same period as the crime charged and is sufficiently similar to the concealment of assets to meet the requirements of Rule 404(b). Catabran has not shown that the prejudicial effect of the testimony outweighed its probative value. We conclude that the district court did not err in allowing the testimony. III. Denial of Motions for Severance and Mistrial Catabran contends that the district court erred in denying his motions for severance under Rule 14 and mistrial once the court severed his co-defendant from the trial. Catabran asserts that the joint trial with its frequent limiting instructions confused the jury. He also contends that he was prejudiced by the district court’s decision to continue his trial after severing Emmets from the case. He argues that he was prejudiced by the severance procedure because the jury would think that because the judge had severed Emmets but not Cata-bran, the judge must have believed that only Catabran was guilty. A. Standard of Review Fed.R.Cim.Pro. 14" }, { "docid": "22990011", "title": "", "text": "admissible, the district court erred in failing to give a limiting instruction to the jury- This circuit has adopted the position that Rule 404(b) is an inclusionary rule — i. e., evidence of other crimes is inadmissible under this rule only when it proves nothing but the defendant’s criminal propensities. United States v. Herrell, 588 F.2d 711, 714 (9th Cir. 1978); United States v. Sangrey, supra, 586 F.2d at 1314. Rule 403 permits the introduction of relevant evidence of other crimes to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, and predisposition in entrapment cases, so long as its probative value is not outweighed by its prejudicial effect. The district court is accorded wide discretion in deciding whether to admit such evidence. United States v. Clardy, 612 F.2d 1139, 1154 (9th Cir. 1980); United States v. Sangrey, 586 F.2d 1312, 1314 (9th Cir. 1978); United States v. McDonald, 576 F.2d 1350, 1356 (9th Cir. 1978). The disputed testimony was relevant to several aspects of this case. Both defendants argue that they were entrapped by an FBI undercover operation. When entrapment is raised as a defense, the prosecution may introduce evidence of prior conduct to show the defendant’s criminal propensity and predisposition. United States v. Reynoso-Ulloa, 548 F.2d 1329, 1341 (9th Cir. 1977). Here, the disputed testimony showed that Diggs was using the Bank fraudulently to obtain money from third parties before the FBI ever came on the scene. The testimony was also probative of Diggs’ specific intent to defraud, see United States v. McDonald, supra, 576 F.2d at 1356; United States v. Hearst, 563 F.2d 1331, 1335 (9th Cir. 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978), as well as of the fact that the Bank never possessed any assets. In view of this, we cannot say that the district court abused its discretion when it refused to exclude the testimony. When it admitted the testimony, the court instructed the jury to consider it only as evidence of the defendants’ motive and intent and of the existence of a conspiracy." }, { "docid": "22258604", "title": "", "text": "prejudicial that, since the defense was that Feldman was not the robber, motive was not an issue and motive evidence was improper. A district court is accorded wide discretion in deciding to admit evidence under Rule 404(b). United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). We review a district court’s decision on the relevancy of evidence for abuse of discretion. United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.), cert. denied, 454 U.S. 830, 102 S.Ct. 125, 70 L.Ed.2d 106, 454 U.S. 847, 102 S.Ct. 165, 70 L.Ed.2d 135 (1981). We review a district court’s decision on balancing probative value against prejudicial harm under .Fed.R.Evid. 403 for an abuse of discretion. United States v. Rubio, 727 F.2d 786, 798 (9th Cir.1983). “Evidence that tends to show that a defendant is living beyond his means is of probative value in a case involving a crime resulting in financial gain.” United States v. Saniti, 604 F.2d 603, 604 (9th Cir.) (per curiam), cert. denied, 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 384 (1979). The fact that Feldman owed substantial sums is therefore relevant. The reference to forged checks is more questionable. However, the admission came during cross-examination conducted by Feldman asking if the bank had notified the account holders of the debt. The witness’ answer is reasonably responsive, and Feldman offers no proof of collusion between the witness and the government. The list of bank addresses is similarly of doubtful relevance, especially since the actual bank robbed was some fifty miles from any bank listed. The jury was free to assess the weight of this evidence, and it is doubtful whether any prejudicial effect so substantially outweighed the probative value as to make admission of the evidence an abuse of discretion. Feldman relies on the holding in United States v. Powell, 587 F.2d 443, 448 (9th Cir.1978) that evidence of prior similar crimes is inadmissible evidence to show intent to commit a crime whose perpetrator’s identity is unknown. “Rule 404(b) is an inclusionary rule — i.e.," }, { "docid": "5553567", "title": "", "text": "as proof of his specific intent to retaliate against Diane Bias? and (2) Did the government meet its burden of proving by a preponderance of the evidence that Torres had committed the acts used to justify the upward departure? III. DISCUSSION A. Evidence of Prior Bad Acts Federal Rule of Evidence 404(b) provides: Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). The principle behind the Rule is that evidence of crimes or acts other than those charged should not be admissible merely to show that the defendant, having committed other bad acts, has a propensity toward crime or a bad character. See United States v. Harvey, 959 F.2d 1371, 1373-74 (7th Cir.1992). Such evidence may be admissible, however, to prove some other fact at issue, such as motive, opportunity, intent, or the other elements outlined by the Rule. Id. Here the government presented the other acts evidence as proof of Torres’s retaliatory intent. He now appeals the court’s decision to admit the evidence over his objection, arguing that the evidence failed to demonstrate his intent and was merely used to attack his character before the jury. We review a court’s decision to admit Rule 404(b) evidence for an abuse of discretion. United States v. Hudson, 884 F.2d 1016, 1019 (7th Cir.1989), cert. denied, 496 U.S. 939, 110 S.Ct. 3221, 110 L.Ed.2d 668 (1990). This Circuit applies a four-part test when examining Rule 404(b) evidence, which may be admitted where: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act," }, { "docid": "23464374", "title": "", "text": "held that expert testimony may be introduced to explain the defendant’s role in the transaction.”). Finally, McCabe’s testimony did not “ask the jury to infer [Appellant’s] guilt from the conduct of unrelated individuals.” Id. at 476. Rather, it merely provided a means by which the jury could understand Lombardozzi’s role in the crimes charged; the other evidence was sufficient to link Appellant to the extortionate loan. Thus, the admission of McCabe’s testimony was not manifestly erroneous. B. Evidence of prior bad acts Lombardozzi also challenges the district court’s admission of evidence related to prior extortionate loans. In particular, he argues, pursuant to Federal Rule of Evidence 404(b), that the district court abused its discretion in admitting the testimony of Peter Perrotta and Ronald Massie, Isoldi’s loansharking customer and associate respectively. In relevant part, Rule 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). This Court reviews “404(b) evidence under an ‘inclusionary approach’ and allows evidence ‘for any purpose other than to show a defendant’s criminal propensity.’ ” United States v. Garcia, 291 F.3d 127, 136 (2d Cir.2002) (quoting United States v. Pitre, 960 F.2d 1112, 1118 (2d Cir.1992)). “To determine if the court properly admitted prior act evidence pursuant to Rule 404(b), we consider whether: (1) the prior act evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate limiting instruction.” Garcia, 291 F.3d at 136. A district court’s decision to admit evidence of prior bad acts is reviewed for abuse of discretion, which we will find only if the judge acted in an arbitrary and irrational manner. Id. The district court did not abuse its discretion by allowing the government to introduce the testimony" }, { "docid": "13825330", "title": "", "text": "crimes, wrongs, or acts” is admissible to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Such testimony is inadmissible “only when it proves nothing but the defendant’s criminal propensities.” United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981) (noting that “[t]his circuit has adopted the position that Rule 404(b) is an inclusionary rule”); see also United States v. Herrell, 588 F.2d 711, 714 (9th Cir.1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979). Following this rule, we find the testimony admissible as circumstantial evidence that Daly knew the cars he sold for Criswell were stolen and (in reference to the substantive counts) that their title certificates were false. We note, moreover, that the district judge’s carefully worded limiting instruction, which warned the jury that they were to use the testimony only to determine whether Criswell and Daly knew they were dealing in stolen cars, demonstrates that he considered the effect of the testimony before admitting it. We agree that the testimony’s probative value was not outweighed by its prejudicial effect, and conclude that the judge did not abuse his wide discretion in ruling that it was admissible. See Diggs, 649 F.2d at 737. VI. Admission of Codefendant’s Statement Daly asserts that the Government’s improper use of a non-testifying codefendant’s statement deprived him of a fair trial in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). A government witness testified that codefendant Diaz had stated that he had obtained a false Nebraska title from someone in Redondo Beach, California. Other testimony indicated that Daly lived in Redondo Beach and stored stolen vehicles at his residence. Although the specific count against Daly toward which this testimony was directed was later dismissed, Daly claims the testimony prejudiced the jury’s deliberations on the other counts. Bruton prohibits admission of “the powerfully incriminating extrajudicial statements of a codefendant.” Id. at 135, 88 S.Ct. at 1627. Although Diaz’s statement permitted an inference of" }, { "docid": "9734658", "title": "", "text": "a function properly performed only by the trial judge), the error here favored the defendants and was harmless beyond a reasonable doubt. We therefore decline to reverse on this ground. D. Earl Drew next contends that evidence of his drug dealing prior to the period covered in the indictment was improperly admitted. The admissibility of prior bad acts evidence is governed by Rule 404(b) of the Federal Rules of Evidence. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The decision to admit evidence of prior bad acts is within the sound discretion of the trial judge, see, e.g., United States v. Gustafson, 728 F.2d 1078, 1083 (8th Cir.), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984), subject only to an abuse of discretion standard of review by this Court. United States v. Bowman, 798 F.2d 333, 337 (8th Cir.1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 906, 93 L.Ed.2d 856 (1987). Indeed, “reversal is only commanded when ‘it is clear that the questioned evidence has no bearing upon any of the issues involved.’ ” United States v. Thompson, 503 F.2d 1096, 1098 (8th Cir.1974) (quoting Wakaksan v. United States, 367 F.2d 639, 645 (8th Cir.1966), cert. denied, 386 U.S. 994, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967)). We find no reason to reverse the District Court’s ruling. There is no question that the evidence of appellant’s prior narcotics transactions has some bearing on his guilt in the charged narcotics offenses as showing, among other things, opportunity, intent, preparation, and plan. That this evidence is relevant to a material issue raised is not even challenged by appellant. While conceding that evidence of his previous narcotics transactions was relevant on a material issue, appellant argues that three other requirements for admission were not met. Appellant first claims that his previous operation of a drug house was" }, { "docid": "12720740", "title": "", "text": "this testimony-constituted evidence of “other crimes” and was inadmissible under Fed.R.Evid. 404(b). We review a district court’s decision to admit evidence under Rule 404(b) for an abuse of discretion. United States v. Espinoza, 578 F.2d 224, 228 (9th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 151, 58 L.Ed. 2d 151 (1978). Rule 404(b) provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Defendant argues that evidence that he misappropriated the carpeting from his landlord could lead a jury to convict based on criminal disposition. However, the testimony is still admissible under rule 404(b) to show intent or plan. Admission is proper under this rule when: (1) the prior act is similar and not too remote in time; (2) proof of the prior act is clear and convincing; (3) the evidence is introduced to prove an element of the charged offense; and (4) the probative value outweighs any prejudice to the defendant. United States v. Vaccaro, 816 F.2d 443, 452-53 (9th Cir.1987). This circuit has repeatedly stated that Rule 404(b) is “an inclusionary rule,” which admits evidence of other circumstances unless the evidence tends only to prove criminal disposition. United States v. Ford, 632 F.2d 1354, 1375 (9th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed.2d 369 (1981); United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). This interpretation vests the trial court with “wide discretion in deciding whether to admit such evidence.” Diggs, 649 F.2d at 737. The prosecutor contends that testimony that the defendant ordered employees to remove the carpet reveals his intent to conceal assets of the bankruptcy. Certainly, it corroborates the government’s theory that the defendant planned to use Bedder Nights’ assets to open Waterbed Liquidators, even if the prosecution could not establish that this" }, { "docid": "22868894", "title": "", "text": "of circumstances.” United States v. Heyward, 729 F.2d 297, 301 n. 2 (4th Cir.1984) (quoting United States v. MacDonald, 688 F.2d 224, 227 (4th Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983)), cert. denied, 469 U.S. 1105, 105 S.Ct. 776, 83 L.Ed.2d 772 (1985). Ora- review of the trial proceedings and the testimony reveals that the challenged testimony of Clatterbaugh and Florence was properly admissible under Federal Rules of Evidence 404(b) and 403, and therefore, the district court did not abuse its discretion by admitting the challenged evidence. Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Rule 404(b), which we have characterized as an inelusionary rule, see United States v. Mark, 943 F.2d 444, 447 (4th Cir.1991), gives a nonexhaustive list of issues other than character for which a district court may properly admit prior bad act evidence. For example, the district court may admit prior bad act evidence to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). Evidence of prior bad acts is admissible if the acts are “(1) relevant to an issue other than character, (2) necessary, and (3) reliable.” United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.1988) (footnotes omitted). To be relevant, evidence need only to have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Evidence is necessary if it “ ‘furnishes part of the context of the crime.’ ” Rawle, 845 F.2d at 1247 n. 4 (quoting United States v. Smith, 446 F.2d 200, 204 (4th Cir.1971)). Finally, under the test set forth above, evidence is reliable and should be submitted to the fact finder unless it is “so preposterous that it could not be believed by a rational and properly instructed juror.” See United States v. Bailey, 990 F.2d 119, 128 (4th" } ]

[ { "docid": "22126385", "title": "", "text": "as a judicially devised plan, then the plan before us today must also be so regarded, and I see no reason to depart from the clear implications of this unanimous decision of the Court rendered only two Terms ago. I therefore conclude that the Court of Appeals properly evaluated this plan under the standards of the federal common law, which has for years recognized that multimember districts and at-large voting are presumptively disfavored. II Even if this plan were properly to be viewed as a “legislatively enacted” plan, however, the majority’s apparent assumption that it represents a proper remedy would nonetheless be troubling. Where the very nature of the underlying violation is dilution of the voting power of a racial minority resulting from the effects of at-large voting in a particular political community, I believe that it is inappropriate either for the local legislative body or a court to respond with more of the same. Although we have refrained from holding that multi-member districts are unconstitutional per se, the presumption in favor of single-member districts as a matter of federal remedial law is a strong one. See, e, g., Connor v. Johnson, 402 U. S. 690 (1971); Connor v. Williams, 404 U. S. 549, 551 (1972); Chapman v. Meier, 420 U. S. 1, 16-19 (1975). We have repeatedly explained this preference by virtue of the fact that multimember districts “tend to submerge electoral minorities and overrepresent electoral majorities.” Connor v. Finch, 431 U. S., at 415; accord, Whitcomb v. Chavis, 403 U. S. 124, 158-159 (1971). See also Chapman v. Meier, supra, at 16. In the instant case, it is essentially undisputed that the use of a multimember district (the city of Dallas) for the at-large election of all City Council members had “submerged” an electoral minority, the Negro voters of Dallas. In this respect the case is unlike East Carroll, where the original electoral scheme was invalidated solely on the ground of mal- apportionment and where the “racial dilution” challenge was raised only in objection to the proposed remedy. Multi-member districts, which are disfavored as court-devised remedies because of" } ]

[ { "docid": "17384819", "title": "", "text": "or election” be “equally open to participation” by minorities and that minorities not have “less opportunity than other[s] ... to participate in the political processes and to elect representatives of their choice.” 42 U.S.C. § 1973(b) (emphasis added). But it does not grant the right to proportional minority elected representation as such, though the extent of minority electoral success is “one circumstance that may be considered.” Id. To be sure, an “opportunity” may be rendered meaningless except in form, where the voting scheme is effectively arranged in such a way that otherwise normally available possibilities for realistic minority success at the polls are precluded. But we are not here faced with such a situation. Considering the relative proportion of the black population in comparison to the whole, the blacks of the Parish would be entitled to only 12.4 percent of the seats on any Board. For a twelve- or thirteen-member Board, this is only one seat. To be entitled to two seats, the black population would need to be at least 16% percent (twelve-member Board) or 15.4 percent (thirteen-member Board). With the present proportion of black population in the Parish, the Board would need to be at least of sixteen-member size to afford a second black seat. The test is not for the superiority of an alternative plan, but whether the legislative choice passes muster. Thus, even the existence of the objectively superi- or Police Jury plan, standing alone, is insufficient as a basis to find that the Board plan was not constitutionally or legally permissible. This is true whether the legislative plan fails to reflect the preferences of the minorities or of the court. The requirement that courts show deference to legislative policy decisions means that a federal court is precluded from substituting a plan that is perceived only to be “better.” Here, the extent of effective dilution of member voting power relevant to the prospective black seat is sufficiently minimal that, without more, it will not justify — let alone compel — a finding that the Board plan violates the Constitution or the Voting Rights Act. Absent a" }, { "docid": "22755934", "title": "", "text": "districts and 24 percent of the entire council) while blacks constituted 21 percent of the local population; and that while the four at-large seats tended to go to Republicans, one of the Republicans elected in 1991 was black. Id., at 358, 361. “Proportionality” as the term is used here links the number of majority-minority voting districts to minority members’ share of the relevant population. The concept is distinct from the subject of the proportional representation clause of §2, which provides that “nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 42 U. S. C. § 1973(b). This proviso speaks to the success of minority candidates, as distinct from the political or electoral power of minority voters. Of. Senate Report 29, n. 115 (minority candidates’ success at the polls is not conclusive proof of minority voters’ access to the political process). And the proviso also confirms what is otherwise clear from the text of the statute, namely, that the ultimate right of §2 is equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race. Minority voters might instead be denied control over a single seat, of course. Each district would need to include merely 51 members of the majority group; minority voters fragmented among the 10 districts could be denied power to affect the result in any district. When 40 percent of the population determines electoral outcomes in 7 out of 10 districts, the minority group can be said to enjoy effective political power 75 percent above its numerical strength. See Brief for Appellees in Nos. 92-593, 92-767, p. 20 (“If the statutory prohibition against providing minorities ‘less opportunity than other members of the electorate ... to elect representatives of their choice’ is given its natural meaning, it cannot be violated by a single-member district plan that assures minority groups voting control over numbers of districts that are numerically proportional to their population in the area where presence of the three Gingles preconditions has been established”). The parties dispute whether the" }, { "docid": "4713650", "title": "", "text": "does not include election results from the 1972 or 1978 general elections, although Long was successful in the 1972 primary with 84% of the black vote (second only to the 98% received by Morris, a black candidate), and Newlin was successful in the 1978 primary with 60% of the black vote (second only to the 78% received by black candidate Harris). Based upon the record data from other general elections, it may be that both of these candidates received near unanimous support of the black community in their general elections, and thus should have been considered the black-preferred candidates in those elections. But, without the data from these elections, it simply cannot be known whether they, or others, were the black-preferred candidates, and therefore whether the black-preferred candidates were successful or defeated. And there are no election returns, general or primary, for the 1966, 1968, 1970, 1982, 1988, or 1990 election cycles. The district court therefore likewise could not have known who were the representatives of choice of black voters in those elections, or whether or not they were defeated. In making these observations, we do not suggest that the district court need analyze every election since 1965 in order to determine whether the minority-preferred candidates are usually defeated. We leave to another day the question of precisely how many elections must be considered in order for a district court’s conclusions to be adequately supported. Cf. Gingles, 478 U.S. at 57, 106 S.Ct. at 2769 (“[A] pattern of racial bloc voting that extends over a period of time is more probative of ... legally significant polarization than are the results of a single election.”); Hines v. Mayor and Town Council of Ahoskie, 998 F.2d 1266, 1272 (4th Cir.1993) (“[The] ‘results’ test [of section 2 of the VRA] ‘supposes the need to consider multiple electoral contests.’ ” (quoting Baird v. Consolidated City of Indianapolis, 976 F.2d 357, 359 (7th Cir.1992), cert. denied, 508 U.S. 907, 113 S.Ct. 2334, 124 L.Ed.2d 246 (1993))); Baird, 976 F.2d at 359 (“Any approach that depends on outcomes supposes the need to consider multiple electoral contests" }, { "docid": "8543940", "title": "", "text": "their choice.” 1982 U.S.C.C.A.N. 208. However, in exercising its equitable powers, the Court should give the appropriate legislative body the first opportunity to provide a plan that remedies the violation. See McGhee, 860 F.2d at 115. If the legislative body fails to respond, or responds with a proposed remedy that constitutes a § 2 violation, then the Court must fashion an appropriate plan. Id. The legislative body should not limit its discussion of a proposed plan to single member districts which is the traditional remedy for minority vote dilution cases. Rather, it should also examine other schemes that will remedy vote dilution in Worcester County such as the modified multi-seat electoral systems, in particular, limited voting, cumulative voting and the single transferable vote. These are systems through which elections may be held in at-large districts without systematically diluting the votes of minorities. See Richard L. Engstrom, Modified Multi-Seat Election Systems as Remedies for Minority Vote Dilution, 21 Stetson L.Rev. 743 (1992); Richard L. Engstrom, The Single Transferable Vote: An Alternative Remedy for Minority Vote Dilution, 27 U.S.F.L.Rev. 781 (1993). Accordingly, the Court will grant defendants 60 days to submit an acceptable remedial plan. ORDER In accordance with the attached Memorandum, it is this 7th day of January, 1994, by the United States District Coxxrt for the District of Maryland, ORDERED: 1. That judgment BE, and the same IS, hereby ENTERED in favor of the Plaintiffs; 2. That the Defendants SUBMIT a proposed remedial plan within 60 days of the date- of this Order; and 3. That a copy of this Memorandum and Order be mailed to counsel for the parties. . In an at-large election, the entire jurisdiction forms a single electoral district from which all the officials are chosen. . The Senate Judiciary Committee Report accompanying the bill which amended § 2 sets out factors which might be probative of a violation. The seven \"typical factors\" and two \"additional factors” are: 1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register," }, { "docid": "18866459", "title": "", "text": "should give the appropriate legislative body the first opportunity to devise a remedial plan. McGhee v. Granville County, N.C., 860 F.2d 110, 115 (4th Cir.1988). The ensuing review by and the remedial powers of the district court are largely dictated by the action taken by the legislative body. Id. When the legislative body responds with a proposed remedy, the “court may not thereupon simply substitute its judgment of a more equitable remedy for that of the legislative body; it may only consider whether the proffered remedial plan is legally unacceptable.” Id. If the proposed remedial plan is legally acceptable, then the district court must “accord great deference to legislative judgments about the exact nature and scope of the proposed remedy, reflecting as it will a variety of political judgments about the dynamics of an overall electoral process that rightly pertain to the legislative prerogative of the state and its subdivisions.” Id. “If the legislative body fails to respond or responds with a legally unacceptable remedy, the responsibility falls on the District Court to exercise its discretion in fashioning a near optimal plan.” Id. (citations and internal quotation marks omitted). A. The County asserts that the district court erred in concluding that Bill 93-6 was a legally unacceptable plan. A proposed plan is a legally unacceptable remedy if “it violates ... constitutional or statutory voting rights — that is, [if] it fails to meet the same standards applicable to an original challenge of’ an electoral scheme. Id. Bill 93-6 altered the former electoral scheme by eliminating the commissioner-at-large position and creating a fifth residency district. Each of the •five commissioners of the Board were still elected at-large. This amendment of the County’s electoral scheme did not remedy the system’s dilution-by-submergence effect because ' it1 retained at-large voting — the structural cause of the vote dilution. As conceded by the County at oral argument, minority-preferred candidates are no- more likely to win a seat on the Board under the scheme established by Bill 93-6 than they were under the former electoral scheme. Bill 93-6 is not a legally acceptable remedy and the" }, { "docid": "18866458", "title": "", "text": "until 1870 and that in the early 1900s the State employed voting prerequisites that enhanced the opportunity for discrimination against African-Americans. Id. at 1091. Taking into consideration these factors and those discussed above, the court concluded that “under the totality of the circumstances, the current system for election to the Worcester County Commission interacts with past and present discrimination to deprive African-Americans of Worcester County the same ‘opportunity [as] other members of the electorate to participate in the political process and to elect representatives of their choice.’ ” Id. (alteration in original) (quoting 42 U.S.C.A. § 1973(b)). B. Having carefully reviewed the record, we are unable to conclude that the district court was clearly erroneous in finding that the use of an at-large residency district system for electing commissioners to the Board impermissibly diluted the votes of African-Americans. Accordingly, we affirm its con- elusion that the former electoral scheme violated § 2 of the Voting Rights Act. III. Once a violation of § 2 of the Voting Rights Act has been established, a district court should give the appropriate legislative body the first opportunity to devise a remedial plan. McGhee v. Granville County, N.C., 860 F.2d 110, 115 (4th Cir.1988). The ensuing review by and the remedial powers of the district court are largely dictated by the action taken by the legislative body. Id. When the legislative body responds with a proposed remedy, the “court may not thereupon simply substitute its judgment of a more equitable remedy for that of the legislative body; it may only consider whether the proffered remedial plan is legally unacceptable.” Id. If the proposed remedial plan is legally acceptable, then the district court must “accord great deference to legislative judgments about the exact nature and scope of the proposed remedy, reflecting as it will a variety of political judgments about the dynamics of an overall electoral process that rightly pertain to the legislative prerogative of the state and its subdivisions.” Id. “If the legislative body fails to respond or responds with a legally unacceptable remedy, the responsibility falls on the District Court to exercise its" }, { "docid": "13644906", "title": "", "text": "success by reference to all 29 seats rather than just the 4 at-large seats. Aggregation, according to plaintiffs, offends the majority’s statement in Gingles that “[t]he inquiry into the existence of vote dilution caused by submergence in a multimember district is district specific.” 478 U.S. at 59 n. 28, 106 S.Ct. at 2771 n. 28. See also id. at 101, 106 S.Ct. at 2792 (O’Connor, J., concurring in judgment) (“racial voting statistics from one district are ordinarily irrelevant in assessing the totality of the circumstances in another district”). Yet the Justices cannot have meant to foreclose examination of electoral patterns in multiple districts — for it is only by looking across multiple districts and elections that we can see patterns of success or failure. See, e.g., McGhee v. Granville County, 860 F.2d 110, 118-19 & n. 9 (4th Cir.1988). Every plan that has ever been devised to comply with the statute measures opportunities for electoral success across multiple seats. Section 2(b) expressly requires a court to consider the “totality of circumstances”. Cf. Board of Estimate v. Morris, 489 U.S. 688, 701 & n. 8, 109 S.Ct. 1433, 1442 & n. 8, 103 L.Ed.2d 717 (1989) (district and at-large representatives must be considered together in determining constitutionality of apportionment scheme). All of the Justices in Gingles considered how black candidates fared in multiple elections spread over many districts and many years. References in Gin-gles to district-specific inquiries assume that each multi-member district spans a different part of the state, with different minority populations and, perhaps, different cohesiveness of majority and minority voters. The Court did not consider how to apply § 2(b) to a jurisdiction that, like New York City (the subject of Morris), contains overlapping single- and multi-member districts. The district court did not err in taking the 25 single-member districts into account in assessing plaintiffs’ contention that Marion County diluted the political strength of black citizens. Section 2(b) says that “nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 42 U.S.C. § 1973(b). This" }, { "docid": "16604243", "title": "", "text": "be equally represented on those occasions when legislative candidates were chosen.” Whitcomb, 403 U.S. at 149, 91 S.Ct. at 1872. Moreover, there was no evidence that Blacks in Marion County “were regularly excluded from the slates of both major parties, thus denying them the chance of occupying legislative seats.\" Id. at 150, 91 S.Ct. at 1872. Instead, the record revealed that under the multimember district in Marion County, two Black senators and seven Black representatives had been elected over an eight year period. . To buttress his claim that only \"interest group politics” are at work in the Texas counties at issue in this case, Judge Higginbotham points to the Seventh Circuit’s decision in Baird v. Consolidated City of Indianapolis, 976 F.2d 357 (7th Cir.1992), and quotes Judge Easterbrook’s statement that ”[t]he Voting Rights Act does not guarantee that nominees of the Democratic Party will be elected, even if black voters are likely to favor that party's candidates.” Dissenting Op. at 832. What Judge Higginbotham fails to disclose, however, is the context in which Judge Easterbrook made this statement. In Baird, Blacks challenged the method by which Marion County elected the twenty-nine members of its city-county council. Twenty-five of the city-county council seats were filled by elections from single-member districts, while four of the seats were filled by at-large elections. At the time of trial, Blacks constituted 21.28% of Marion County's population and approximately 60% of the population in seven of the twenty-five (or 24.14% of all twenty-nine seats). Thus, while Blacks had an \"undiminished right to participate in the political process” and elect representative of their choice, see 976 F.2d at 359, they were not guaranteed the opportunity to elect representatives in the four at-large seats. Faced with this evidence, the district court granted summary judgment in favor of the defendants, concluding that, ”[i]f [Black] voters are politically cohesive, they will elect candidates of their choice and obtain representation in the Council exceeding their numbers in the electorate; and if they are not cohesive, they cannot satisfy the requirements for relief under Gingles. ” Id. The Seventh Circuit agreed," }, { "docid": "12227474", "title": "", "text": "a district with a majority black general and voting age population. Further, plaintiffs’ expert, Dr. Allan J. Lichtman, demonstrated to the Court’s satisfaction that given a black majority district of 55% or more, plaintiffs have a reasonable opportunity to elect their candidate of choice. Indeed, the United States Court of Appeals for the Fourth Circuit, in holding that a county’s proposed remedial single member district plan containing seven districts, one of which had a 51.8% black voting age population and described by its opponents as providing no better than a “fighting chance” to elect a representative of their choice, met the rele vant standards to effect a complete remedy for a specific violation of Section 2 voting rights. See McGhee, et al. v. Granville County, et al., 860 F.2d 110 (4th Cir.1988). The second and third parts of the Gin-gles test focus on the issue of racially polarized voting. Through an examination of racially polarized voting, the Court may ascertain whether minority group members constitute a politically cohesive unit, the second element in the Gingles test, and whether whites vote sufficiently as a bloc usually to defeat the minority’s preferred candidate, the final Gingles condition. See Gingles, 478 U.S. at 56, 106 S.Ct. at 2770. As stated by the United States Court of Appeals for the Fourth Circuit, the legal standard for determining racial polarization in voting “looks only to the difference between how majority votes and minority votes were cast_ The Court should inquire separately into minority and majority voting, to see whether members of the minority usually vote for the same candidates — if so, there is the requisite minority political cohesiveness — and to see whether the majority vote is sufficiently homogenous to cancel the minority vote plus the crossover vote.” Collins v. City of Norfolk, Va., 816 F.2d 932, 935-36 (4th Cir.1987). In the instant case, the Court is satisfied that voting patterns in Henrico County reveal a “severe and persistent pattern of racially polarized voting.” (Testimony of A. Lichtman). Racially polarized voting can be established through both anecdotal evidence and electoral analysis. See Carrollton Branch" }, { "docid": "13644905", "title": "", "text": "§ 2(b). Any approach that depends on outcomes supposes the need to consider multiple électoral contests — the same position over many years, many positions during the same year, or both. States attempt to comply with the Voting Rights Act by creating conditions conducive to success by minorities throughout the jurisdiction as a whole. E.g., Prosser v. Elections Board, 793 F.Supp. 859 (W.D.Wis.1992) (three-judge court). That it why it does not violate the Act to have some districts in which black voters form a minority and are unlikely to elect candidates of their choice, Gomez v. Watsonville, 863 F.2d 1407, 1414 (9th Cir.1988); Campos v. Baytown, 840 F.2d 1240, 1244 (5th Cir.1988), any more than it violates the Act to have districts (such as the seven black-majority districts in Marion County) in which white voters are unlikely to be influential at the polls. See United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). Considerations of this kind persuaded the district court to measure black voters’ likely success by reference to all 29 seats rather than just the 4 at-large seats. Aggregation, according to plaintiffs, offends the majority’s statement in Gingles that “[t]he inquiry into the existence of vote dilution caused by submergence in a multimember district is district specific.” 478 U.S. at 59 n. 28, 106 S.Ct. at 2771 n. 28. See also id. at 101, 106 S.Ct. at 2792 (O’Connor, J., concurring in judgment) (“racial voting statistics from one district are ordinarily irrelevant in assessing the totality of the circumstances in another district”). Yet the Justices cannot have meant to foreclose examination of electoral patterns in multiple districts — for it is only by looking across multiple districts and elections that we can see patterns of success or failure. See, e.g., McGhee v. Granville County, 860 F.2d 110, 118-19 & n. 9 (4th Cir.1988). Every plan that has ever been devised to comply with the statute measures opportunities for electoral success across multiple seats. Section 2(b) expressly requires a court to consider the “totality of circumstances”. Cf. Board of Estimate" }, { "docid": "22683359", "title": "", "text": "or single-member district plan, qualified minority groups usually cannot elect the representatives they would be likely to elect under the most favorable single-member districting plan, then §2 is violated. Unless minority success under the challenged electoral system regularly approximates this rough version of proportional representation, that system dilutes minority voting strength and violates § 2. To appreciate the implications of this approach, it is useful to return to the illustration of a town with four council representatives given above. Under the Court’s approach, if the black voters who constitute 30% of the town’s voting population do not usually succeed in electing one representative of their choice, then regardless of whether the town employs at-large elections or is divided into four single-member districts, its electoral system violates § 2. Moreover, if the town had a black voting population of 40%, on the Court’s reasoning the black minority, so long as it was geographically and politically cohesive, would be entitled usually to elect two of the four representatives, since it would normally be possible to create two districts in which black voters constituted safe majorities of approximately 80%. To be sure, the Court also requires that plaintiffs prove that racial bloc voting by the white majority interacts with the challenged districting plan so as usually to defeat the minority’s preferred candidate. In fact, however, this requirement adds little that is not already contained in the Court’s requirements that the minority group be politically cohesive and that its preferred candidates usually lose. As the Court acknowledges, under its approach, “in general, a white bloc vote that normally will defeat the combined strength of minority support plus white ‘crossover’ votes rises to the level of legally significant white bloc voting.” Ante, at 56. But this is to define legally significant bloc voting by the racial majority in terms of the extent of the racial minority’s electoral success. If the minority can prove that it could constitute a majority in a single-member district, that it supported certain candidates, and that those candidates have not usually been elected, then a finding that there is “legally significant" }, { "docid": "22777549", "title": "", "text": "from prolonged legislative inaction. How.ever, the Colorado General Assembly, in spite of the state constitutional mandate for periodic reapportionment, has enacted only one effective legislative apportionment measure in the past 50 years. As appellees have correctly pointed out, a majority of the voters in every county of the State voted in favor of the apportionment scheme embodied in Amendment No. 7’s provisions, in preference to that contained in proposed Amendment No. 8, which, subject to minor deviations, would have based the apportionment of seats in both houses on a population basis. However, the choice presented to the Colorado electorate, in voting on these two proposed constitutional amendments, was hardly as clear-cut as the court below regarded it. One of the most undesirable features of the existing apportionment scheme was the requirement that, in counties given more than one seat in either or both of the houses of the General Assembly, all legislators must be elected at large from the county as a whole. Thus, under the existing plan, each Denver voter was required to vote for eight senators and 17 representatives. Ballots were long and cumbersome, and an intelligent choice among candidates for seats in the legislature was made quite difficult. No identifiable constituencies within the populous counties resulted, and the residents of those areas had no single member of the Senate or House elected specifically to represent them. Rather, each legislator elected from a multimember county represented the county as a whole. Amendment No. 8, as distinguished from Amendment No. 7, while purportedly basing the apportionment of seats in both houses on a population basis, would have perpetuated, for all practical purposes, this debatable feature of the existing scheme. Under Amendment No. 8, senators were to be elected at large in those counties given more than one Senate seat, and no provision was made for subdistricting within such counties for the purpose of electing senators. Representatives were also to be elected at large in multimember counties pursuant to the provisions of Amendment No. 8, at least initially, although subdistricting for the purpose of electing House members was permitted if" }, { "docid": "17139729", "title": "", "text": "nothing in our earlier opinion disapproved of cumulative voting in the abstract. The Illinois Municipal Code makes available to cities a variety of election methods. The district court should either have selected one of these methods or found that the Illinois options violate federal law. Instead, as it had done before, it opted for a hybrid system without submitting that plan to the voters, as Illinois law would require, and without explaining why one of the State’s authorized systems would not do the job. Although the Municipal Code allows for cumulative voting, it specifies that a city is to be divided into districts (not less than two and not more than six) and that each district is entitled to three aldermen. 65 ILCS 5/3.1-15-30 & 5/3.1-15-35. Without a finding that the Code’s cumulative voting method violates federal law, the district court modified the plan to call for the city-wide election of seven council members. The district court’s plan also suffers from a failure to respect the City’s preference for single-member districts. The Supreme Court has held that in fashioning an electoral system to remedy a voting rights violation, courts “should follow the policies and preferences of the State, as expressed in statutory and constitutional provisions or in the ... plans proposed by the state legislature, whenever adherence to state policy does not detract from the Federal Constitution.” White v. Weiser, 412 U.S. 783, 795, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973). Accordingly, when a legislative body fails to offer an acceptable remedy, “the court, in exercising its discretion to fashion a remedy that complies with § 2, must to the greatest extent possible give effect to the legislative policy judgments underlying the current electoral scheme or the legally unacceptable remedy offered by the legislative body.” Cane v. Worcester County, Md., 35 F.3d 921, 928 (4th Cir.1994). Here, the City has demonstrated a clear preference for single-member districts. It proposed a remedial plan that relies on single-member districts and, in doing so, made a policy judgment about which electoral schemes are best suited for the locality. We should defer to the" }, { "docid": "22777548", "title": "", "text": "22,000 persons each. Divergences from population-based representation in the Senate are growing continually wider, since the underrepresented districts in the Denver, Pueblo, and Colorado Springs metropolitan areas are rapidly gaining in population, while many of the overrepresented rural districts have tended to decline in population continuously in recent years. III. Several aspects of this case serve to distinguish it from the other cases involving state legislative apportionment also decided this date. Initially, one house of the Colorado Legislature is at least arguably apportioned substantially on a population basis under Amendment No. 7 and the implementing statutory provisions. Under the apportionment schemes challenged in the other cases, on the other hand, clearly neither of the houses in any of the state legislatures is apportioned sufficiently on a population basis so as to be constitutionally sustainable. Additionally, the Colorado scheme of legislative apportionment here attacked is one adopted by a majority vote of the Colorado electorate almost contemporaneously with the District Court's decision on the merits in this litigation. Thus, the plan at issue did not result from prolonged legislative inaction. How.ever, the Colorado General Assembly, in spite of the state constitutional mandate for periodic reapportionment, has enacted only one effective legislative apportionment measure in the past 50 years. As appellees have correctly pointed out, a majority of the voters in every county of the State voted in favor of the apportionment scheme embodied in Amendment No. 7’s provisions, in preference to that contained in proposed Amendment No. 8, which, subject to minor deviations, would have based the apportionment of seats in both houses on a population basis. However, the choice presented to the Colorado electorate, in voting on these two proposed constitutional amendments, was hardly as clear-cut as the court below regarded it. One of the most undesirable features of the existing apportionment scheme was the requirement that, in counties given more than one seat in either or both of the houses of the General Assembly, all legislators must be elected at large from the county as a whole. Thus, under the existing plan, each Denver voter was required to vote" }, { "docid": "16604244", "title": "", "text": "Easterbrook made this statement. In Baird, Blacks challenged the method by which Marion County elected the twenty-nine members of its city-county council. Twenty-five of the city-county council seats were filled by elections from single-member districts, while four of the seats were filled by at-large elections. At the time of trial, Blacks constituted 21.28% of Marion County's population and approximately 60% of the population in seven of the twenty-five (or 24.14% of all twenty-nine seats). Thus, while Blacks had an \"undiminished right to participate in the political process” and elect representative of their choice, see 976 F.2d at 359, they were not guaranteed the opportunity to elect representatives in the four at-large seats. Faced with this evidence, the district court granted summary judgment in favor of the defendants, concluding that, ”[i]f [Black] voters are politically cohesive, they will elect candidates of their choice and obtain representation in the Council exceeding their numbers in the electorate; and if they are not cohesive, they cannot satisfy the requirements for relief under Gingles. ” Id. The Seventh Circuit agreed, noting that under the current election plan in Marion County, \"losses by the candidates black voters prefer may have more to do with politics than with race.\" 976 F.2d at 361. The Seventh Circuit further observed, that ”[t]he Voting Rights Act does not guarantee that nominees of the Democratic Party will be elected, even if black voters are likely to favor that party’s candidates.” Id. (emphasis added). By citing Baird, Judge Higginbotham suggests that circumstances surrounding the election of city-council members in Marion County, Indiana are like the circumstances surrounding the election of district judges in the nine Texas counties at issue in this case. Even a cursory reading of the case, however, reveals the marked differences between the two political landscapes. Texas does not elect its district court judges from single member districts, and the minority groups in the various counties, even if they were 100% politically cohesive, would not be guaranteed the opportunity to elect representatives even approaching their numbers in the community. Thus, .our conclusion about the significance of partisan voting patterns" }, { "docid": "13340048", "title": "", "text": "manipulation of district lines, minorities may justly claim that their “ability to elect” candidates has been diluted in violation of Section 2. On the other hand, when minority voters, as a group, are too small or loosely distributed to form a majority in a single-member district, they have no ability to elect candidates of their own choice, but must instead rely on the support of other groups to elect candidates. Under these circumstances, minorities cannot claim that their voting strength — that is, the potential to independently decide the outcome of an eleetion — has been diluted in violation of Section 2. As the Supreme Court observed in Growe, a minority group claiming vote dilution must establish that it “has the potential to elect a representative of its own choice in some single-member district.” Growe, 507 U.S. at 40, 113 S.Ct. 1075 (emphasis added). And “[u]nless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice.” Gingles, 478 U.S. at 50 n. 17, 106 S.Ct. 2752. Ultimately, the right to “undiluted” voting strength in Section 2 is a guarantee of equal opportunity in voting, ensuring that a minority group is not denied, on account of race, color, or language minority status, the opportunity to exercise an electoral power that is commensurate with its population in the relevant jurisdiction. See Smith v. Brunswick County, 984 F.2d 1393, 1400 (4th Cir.1993) (explaining that “the analysis [of a vote dilution claim] must consider whether the protected voting group has a voting opportunity that relates favorably to the group’s population in the jurisdiction for which the election is being held.”). This guarantee of equal opportunity in voting is evident in the plain language of Section 2, which is violated whenever an election law or practice leaves minorities with “less opportunity than other members of the electorate ... to elect representatives of their choice.” 42 U.S.C. § 1973(b); see also Voinovich, 507 U.S. at 155, 113 S.Ct. 1149 (“Only if the apportionment scheme has the effect" }, { "docid": "12227473", "title": "", "text": "show that blacks would comprise a majority of the voting age population. See, e.g., McNeil v. Springfield, Park Dist., 851 F.2d 937, 944-45 (7th Cir.1988) (first requirement in Gin-gles is measured by voting age population). Gingles requires plaintiffs, as a threshold matter, to demonstrate that the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district because “[ujnless the minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice.” Gingles, 478 U.S. at 50 n. 17, 106 S.Ct. at 2766 n. 17 (emphasis in the original). Plaintiffs, however, need not demonstrate that the minority will have a “safe seat” in the proposed district, or even that they will constitute a majority of voters turning out on election day. What plaintiffs must show is that absent the challenged structure, the minority has a reasonable opportunity to elect a representative of their choice. Plaintiffs have demonstrated that it is possible to create a district with a majority black general and voting age population. Further, plaintiffs’ expert, Dr. Allan J. Lichtman, demonstrated to the Court’s satisfaction that given a black majority district of 55% or more, plaintiffs have a reasonable opportunity to elect their candidate of choice. Indeed, the United States Court of Appeals for the Fourth Circuit, in holding that a county’s proposed remedial single member district plan containing seven districts, one of which had a 51.8% black voting age population and described by its opponents as providing no better than a “fighting chance” to elect a representative of their choice, met the rele vant standards to effect a complete remedy for a specific violation of Section 2 voting rights. See McGhee, et al. v. Granville County, et al., 860 F.2d 110 (4th Cir.1988). The second and third parts of the Gin-gles test focus on the issue of racially polarized voting. Through an examination of racially polarized voting, the Court may ascertain whether minority group members constitute a politically cohesive unit, the second element in the Gingles" }, { "docid": "3664982", "title": "", "text": "base does not include the results of those elections. Given this evidence, the outcome of a trial of this case is at best uncertain. Defendants contend that the proposed Loewen plan would give black voters super-representation on the City Council. Recalling that Section 2 does not guarantee blacks the right to elect black candidates, but rather the opportunity to participate, the proposed plan would create two black districts of the seven single-member districts, guaranteeing blacks 28% of the seats on the Council. Based on the 1985 Test Census data, blacks comprise 23.9% of the total population, but only 20.0% of the voting age population of Tampa. Dr. Loewen estimated the total percentage of blacks to be 24.8% by excluding 3.5% of the City’s population, since they fell into the “other” category. While Section 2 specifically prohibits proportional representation, other courts have used proportionality as a rough indicator of whether a particular electoral system or remedy provides minorities with an equal opportunity to participate in the political process. Collins v. City of Norfolk, 679 F.Supp. 557, 581 (E.D.Va.1988); Potter v. Washington, 653 F.Supp. 121, 128 (N.D.Fla.1986). Defendant contends that its 4-3 plan provides blacks with representation on the City Council in closer proportion to Tampa’s black voting age population. It also provides blacks with the opportunity to significantly effect four members of the City Council, the one “safe” seat, and the three at-large seats. The plan proposed by Dr. Loewen would give blacks the opportunity to affect the outcome in only two City Council contests. Defendants assert the 4-3 plan is superior to the Loewen plan because blacks are dispersing in Tampa, moving from the two “safe” districts proposed by Dr. Loewen. The Court cannot evaluate this factual dispute without more evidence from Plaintiffs, thus adding to the uncertainty of the outcome of this case at trial. In light of the above discussion, the Court concludes that there is substantial uncertainty as to whether Plaintiffs would prevail at trial, and this uncertainty militates in favor of accepting the settlement. If Plaintiffs did prevail, it is likely that the Court would order" }, { "docid": "13340049", "title": "", "text": "Gingles, 478 U.S. at 50 n. 17, 106 S.Ct. 2752. Ultimately, the right to “undiluted” voting strength in Section 2 is a guarantee of equal opportunity in voting, ensuring that a minority group is not denied, on account of race, color, or language minority status, the opportunity to exercise an electoral power that is commensurate with its population in the relevant jurisdiction. See Smith v. Brunswick County, 984 F.2d 1393, 1400 (4th Cir.1993) (explaining that “the analysis [of a vote dilution claim] must consider whether the protected voting group has a voting opportunity that relates favorably to the group’s population in the jurisdiction for which the election is being held.”). This guarantee of equal opportunity in voting is evident in the plain language of Section 2, which is violated whenever an election law or practice leaves minorities with “less opportunity than other members of the electorate ... to elect representatives of their choice.” 42 U.S.C. § 1973(b); see also Voinovich, 507 U.S. at 155, 113 S.Ct. 1149 (“Only if the apportionment scheme has the effect of denying a protected class the equal opportunity to elect its candidate of choice does it violate § 2; where such an effect has not been demonstrated, § 2 simply does not speak to the matter.”). As a result, to establish a vote dilution claim under Section 2, minorities must prove that they have been unlawfully denied the political opportunity they would have enjoyed as a voting-age majority in a single-member district: namely, the opportunity to “dictate electoral outcomes independently” of other voters in the jurisdiction. Voinovich, 507 U.S. at 154, 113 S.Ct. 1149. B. In light of these principles informing a vote dilution claim under Section 2, we must conclude that the complaint in this case fails to state a claim upon which relief can be granted. The plaintiffs cannot establish that black voters have been denied an equal opportunity to elect candidates of their choice. The 2001 Redistricting Plan reduces the voting-age population of blacks in the Fourth District from 37.8 to 32.3 percent. It does not follow, however, that the new plan" }, { "docid": "4713651", "title": "", "text": "or not they were defeated. In making these observations, we do not suggest that the district court need analyze every election since 1965 in order to determine whether the minority-preferred candidates are usually defeated. We leave to another day the question of precisely how many elections must be considered in order for a district court’s conclusions to be adequately supported. Cf. Gingles, 478 U.S. at 57, 106 S.Ct. at 2769 (“[A] pattern of racial bloc voting that extends over a period of time is more probative of ... legally significant polarization than are the results of a single election.”); Hines v. Mayor and Town Council of Ahoskie, 998 F.2d 1266, 1272 (4th Cir.1993) (“[The] ‘results’ test [of section 2 of the VRA] ‘supposes the need to consider multiple electoral contests.’ ” (quoting Baird v. Consolidated City of Indianapolis, 976 F.2d 357, 359 (7th Cir.1992), cert. denied, 508 U.S. 907, 113 S.Ct. 2334, 124 L.Ed.2d 246 (1993))); Baird, 976 F.2d at 359 (“Any approach that depends on outcomes supposes the need to consider multiple electoral contests — the same position over many years, many positions during the same year, or both.”); Collins I, 816 F.2d at 936 (“[W]hether there is a ‘pattern of racial bloc voting that extends over a period of time’ [is] a critical factor in a claim of vote dilution under § 2.”); see also Uno, 72 F.3d at 985 (“[R]ace-eonseious politics (or its absence, for that matter) can more readily be seen by producing a documentary that spans a series of elections than by taking an isolated snapshot of a single election.”). Today, we hold merely that it is insufficient to consider selectively only those elections in which minority candidates were on the ballot, at least where such elections are not such a substantial majority of the total elections that a fair assessment can be made of whether the minority-preferred candidates are usually defeated by white bloc voting. III. Plaintiffs challenge the methodology employed by the district court on numerous other grounds. Specifically, plaintiffs urge: 1) that the district court improperly viewed as minority-preferred candidates some candidates" } ]

[ { "docid": "812264", "title": "", "text": "omitted any complaint about the representation he had received. Thus, at no time during the proceedings did he question the adequacy of counsel or indicate dissatisfaction in any way with the manner in which his case was being handled. It was not until subsequent to the imposition of a 15-year sentence to run concurrently with the state sentence that the appellant decided his counsel was inadequate and that his rights had been prejudiced. At a hearing in District Court on March 9, 1959, appellant for the first time indicated dissatisfaction with his counsel. In reply to appellant’s complaint, the Trial Judge stated: “I am fully satisfied and state my confidence in Mr. Nelson that he has done a splendid job and has been derelict in no respect at all.” It would seem quite apparent that the complaint of inadequacy of counsel was born in the mind of appellant immediately after receiving a sentence of 15 years upon Count 1. Nothing in the record justifies the slightest doubt that Mr. Nelson represented the appellant adequately and well. The charge to the contrary here is groundless. The last claim of error is that the appellant’s rights were violated by the trial court’s refusal to grant a transcript at government cost. Whatever basis there may have been for such complaint, and we indicate none, it is no longer present. A complete transcript of the proceedings was served upon the appellant at the Minnesota State Penitentiary, Stillwater, Minnesota, on August 14,1959. We have the original transcript before us as well as the original files of the District Court. We have examined them with care and do not find that appellant’s rights were in any way violated. Affirmed. . United States ex rel. Kassin v. Mulligan, 1934, 295 U.S. 396, 400, 55 S.Ct. 781, 79 L.Ed. 1501; Garrison v. Johnston, 9 Cir., 1939, 104 F.2d 128, 130; O’Grady v. Hiatt, D.C.M.D.Pa.1943, 52 F.Supp. 213, affirmed 3 Cir., 1944, 142 F.2d 558; United States v. Liebrich, D.C.M.D.Pa. 1932, 55 F.2d 341; United States v. Gray, D.C.1949, 87 F.Supp. 436." } ]

[ { "docid": "478273", "title": "", "text": "establish denial of speedy trial within intendment of the Sixth Amendment and one complaining of delay must affirmatively demand his right of trial. Bayless v. United States, 147 F.2d 169 (8th Cir. 1945), rev’d. on other grounds 150 F.2d 236 (8th Cir. 1945). In a later decision, the Second Circuit reaffirmed this principle in United States v. Lustman, 258 F.2d 475, 478 (2nd Cir. 1958), cert, denied 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958): “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. Kaye, 2 Cir., 1958, 251 F.2d 87, certiorari denied 1958, 356 U.S. 919, 78 S.Ct. 702, 2 L.Ed.2d 714; Collins v. United States, 9 Cir., 1946, 157 F.2d 409; Bayless v. United States, 8 Cir., 1945, 147 F.2d 169, reversed on other grounds 1945, 150 F.2d 236; Pietch v. United States, 10 Cir., 1940, 110 F.2d 817, 129 A.L.R. 563, certiorari denied 1940, 310 U.S. 648, 60 S.Ct. 1100, 84 L.Ed. 1414; Worthington v. United States, 7 Cir., 1924, 1 F.2d 154, certiorari denied 1924, 266 U.S. 626, 45 S.Ct. 125, 69 L.Ed. 475; United States v. Research Foundation, D.C.S.D.N.Y. 1957, 155 F.Supp. 650; United States v. Stein, D.C.S.D.N.Y.1955,18 F.R.D. 17; United States v. Provoo, D.C.D.Md.1955, 17 F.R.D. 183, 198, affirmed 1955, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761.” Appellant in his argument principally complains about the lapse of time between the commission of the crime on March 3,1961 and the indictment on June 29, 1961, resulting in his arrest on July 7, 1961 — something less than three months elapsing between the criminal act and the indictment and slightly more than three months elapsing between the commission of the offense and appellant’s arrest. The provisions of the Sixth Amendment guaranteeing a speedy trial contemplate the undue delay in the prosecution of a pending charge and not the mere delay in the filing of a possible criminal charge. In short, there is no substance to appellant’s claim that the government was guilty" }, { "docid": "6816960", "title": "", "text": "receive effective assistance of counsel, and that the Government failed to sustain the burden of proof necessary to prove the alleged offenses. On June 20, 1960, the Government moved that the motion for relief be denied. Both appellant and appellee filed written arguments in support of their respective motions. On November 2, 1960, the District Judge entered an order which stated that the files and records in the case conclusively showed that the appellant was entitled to no relief, and denied appellant’s motion to vacate the sentences. This appeal followed. A Section 2255 proceeding cannot be used as a substitute for an appeal. Davilman v. United States, 6 Cir., 180 F.2d 284; Hudspeth v. United States, 6 Cir., 183 F.2d 68, 69. The sufficiency of the evidence to prove the alleged offenses will not be reviewed in such a proceeding. Dunn v. United States, 6 Cir., 250 F.2d 548, certiorari denied, 356 U.S. 942, 78 S.Ct. 786, 2 L.Ed.2d 816, rehearing denied, 356 U.S. 970, 78 S.Ct. 1009, 2 L.Ed.2d 1075. Appellant was arrested under an indictment. It was not necessary that he have a preliminary hearing for the purpose of holding him to the Grand Jury. United States ex rel. Kassin v. Mulligan, 295 U.S. 396, 400, 55 S.Ct. 781, 79 L.Ed. 1501; Barrett v. United States, 8 Cir., 270 F.2d 772, 775-776. Illegal arrest, illegal detention, and delay in bringing a defendant to trial are not questions which can be raised in a Section 2255 proceeding. Plummer v. United States, 104 U.S.App.D.C. 211, 260 F.2d 729, 730; United States v. Williams, 7 Cir., 212 F.2d 786; Sutton v. United States, 4 Cir., 267 F.2d 271; Rule 48(b), Rules of Criminal Procedure, 18 U.S.C.; United States v. Lustman, 2 Cir., 258 F.2d 475, 478, certiorari denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109. The right of appellant as an indigent defendant to have witnesses subpoenaed by the Court is governed by Rule 17(b), Rules of Criminal Procedure. The record fails to show that the appellant complied with the provisions of this rule. A denial of a request" }, { "docid": "5853550", "title": "", "text": "and certiorari was denied. 379 U.S. 924, 85 S.Ct. 281, 13 L.Ed.2d 337 (1964). Subsequently, Chapman’s motion for a new trial on the ground of newly discovered evidence was denied in the District Court. We denied leave to appeal in forma pawperis and refused assignment of counsel. Thereafter, appellant sought to vacate the judgment, pursuant to 28 U.S.C. § 2255, alleging that the government had knowingly used per jured testimony. This application was also denied. Finally, more than 3 years after his second conviction, Chapman claimed for the first time that he was denied a fair trial by virtue of the 14-month delay that transpired between his alleged sale of narcotics on August 1, 1960, and his arrest on September 27, 1961. This application, pursuant to 28 U.S.C. § 2255, for an order vacating his conviction was denied, and it is from that denial that Chapman now appeals. We note, initially, that there is no constitutional right to be arrested. Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Nevertheless, there may be an occasion when a pre-arrest delay may deprive a defendant of a constitutional right if there is a “showing that the delay * * * was prejudicial or part of a deliberate, purposeful and oppressive design for delay.” United States v. Rivera, 346 F.2d 942, 943 (2d Cir. 1965), quoting from United States v. Wilson, 342 F.2d 782, 783 (2d Cir.), cert. denied, 382 U.S. 860, 86 S.Ct. 119, 15 L.Ed.2d 98 (1965). But just as the Sixth Amendment right to a speedy trial must be asserted or it will be deemed waived, see United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (2d Cir. 1966), United States v. Lustman, 258 F.2d 475 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958), so too is there an obligation “[o]nce a defendant has been arrested and charged * * * to give prompt notice of prejudice claimed as the result of pre-arrest delay; certainly the outside [time] limit for such a claim is at trial," }, { "docid": "6816959", "title": "", "text": "SHACKELFORD MILLER, Jr., Chief Judge. Appellant, William Thomas Shields, being represented by a court-appointed attorney, was tried by jury and found guilty under two counts of an indictment charging (1) forgery of a United States Treasury cheek in the amount of $2,088.-59, and (2) uttering and publishing as true said forged check, in violation of Section 495 and Section 2, Title 18 U.S. Code. On September 16, 1959, he was sentenced to five years imprisonment on each count, to be served consecutively. No appeal was taken. On June 6,1960, the District Judge received a letter from appellant, who was serving the sentences at the United States Penitentiary at Leavenworth, Kansas, which the District Judge ordered to be filed and treated as appellant’s motion for relief under Section 2255, Title 28 U.S.Code. Appellant contended that his sentences should be vacated because he was held more than three months in the county jail without having a preliminary hearing or an arraignment, that he was given no opportunity to subpoena witnesses in his behalf, that he did not receive effective assistance of counsel, and that the Government failed to sustain the burden of proof necessary to prove the alleged offenses. On June 20, 1960, the Government moved that the motion for relief be denied. Both appellant and appellee filed written arguments in support of their respective motions. On November 2, 1960, the District Judge entered an order which stated that the files and records in the case conclusively showed that the appellant was entitled to no relief, and denied appellant’s motion to vacate the sentences. This appeal followed. A Section 2255 proceeding cannot be used as a substitute for an appeal. Davilman v. United States, 6 Cir., 180 F.2d 284; Hudspeth v. United States, 6 Cir., 183 F.2d 68, 69. The sufficiency of the evidence to prove the alleged offenses will not be reviewed in such a proceeding. Dunn v. United States, 6 Cir., 250 F.2d 548, certiorari denied, 356 U.S. 942, 78 S.Ct. 786, 2 L.Ed.2d 816, rehearing denied, 356 U.S. 970, 78 S.Ct. 1009, 2 L.Ed.2d 1075. Appellant was arrested under" }, { "docid": "23432936", "title": "", "text": "v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971): “[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engages the particular protections of [the] speedy-trial provision of the Sixth Amendment.” The defendant makes no real claim of excessive post-indictment delay. As to the reason for delay, the Government asserts it was brought about by the defendant’s agreement to help in further narcotics investigations with the possibility that successful cooperation might lead to a dropping of charges. Singleton agrees that three months of the delay was the result of his offer to cooperate, but he claims that this offer was terminated during the spring of 1970. The United States Attorney claims that he postponed the seeking of an indictment pursuant to a request, dated June 9, 1970, from the Bureau of Narcotics and Dangerous Drugs until the Bureau notified him on January 26, 1971, that Singleton’s help had been unsatisfactory. The trial court found that the delay was attributable to the defendant. This conclusion was supported by the evidence and is dispositive of appellant’s point. See United States v. Kabot, 295 F.2d 848, 852 (2 Cir. 1961), cert. denied, 369 U.S. 803, 82 S.Ct. 641, 7 L.Ed.2d 550 (1962); United States v. Lustman, 258 F.2d 475, 477 (2 Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). With regard to the claim of prejudice, it may be assumed that the appellant sustained a certain amount from the fact that the court and jury did not have the opportunity to observe the witness Morris, but this was brought about by Singleton’s unreadiness to go to trial when Morris was in court ready to testify on April 22. There remains the element of waiver. It has long been the rule of this Circuit that the failure to demand a speedy trial constitutes a waiver of that right, Lustman, supra, at 478, Small, supra, 438 F.2d at 714; cf. Dickey v. Florida, 398 U.S. 30, 36, 90 S.Ct. 1564, 26" }, { "docid": "22998276", "title": "", "text": "gather new evidence; and see the cases illustrating “oppression” in Petition of Provoo, 17 F.R.D. 183 (D.Md.), aff’d by memorandum, 350 U.S. 857, 76-S.Ct. 101, 100 L.Ed. 761 (1955). . Even where a 4-year delay has occurred,. United States v. Lustman, 258 F.2d 475, 478 (2 Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). . Id.; and see James v. United States, 104 U.S.App.D.C. 263, 261 F.2d 381 (1958), cert. denied, 359 U.S. 930, 79 S. Ct. 613, 3 L.Ed.2d 631 (1959). . Compare United States v. Graham, 289 F.2d 352 (7 Cir. 1961), where the accused had kept the court occupied with various proceedings. . For tliat reason we do not now condemn the District Court’s calendar system although it has been under critical scrutiny in certain cases. See, e. g., King v. United States, supra note 9; Willis v. United States, 106 U.S.App.D.C. 211, dissenting opinion at 219, 271 F.2d 477, 485 (1959) ; Porter v. United States, 106 U.S.App.D.C. 150, 270 F.2d 453 (1959), cert. denied, 363 U.S. 805, 80 S.Ct. 1240, 4 L.Ed.2d 1148 (1960). . The announcement by defense counsel on March 16, 1962 of his unavailability for 30 days came just after the case had been placed upon a “day to day” basis because of appellant’s “speedy trial” motion of March 10, 1962. As noted, we regard this factor as only one of the “circumstances” rather than as an element of “fault” on the part of the defense. Compare the “circumstances” considered in Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963). . “It is well settled that the fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and strata gem may be employed to catch those engaged in criminal enterprises.” Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932). . Ibid.; terms such as “inspired, incited, persuaded” have also been used. Id., 287 U.S. at 444, 53 S.Ct. at 212, 77 L.Ed. 413." }, { "docid": "616011", "title": "", "text": "defect was not that the court failed to grant appellant a speedy trial date, but that it granted him too many speedy trial dates and failed to keep them. When appellant was sentenced, on June 3, 1957, to imprisonment for a term of twenty months to five years, he had already been in jail over six months. He has now been imprisoned over two years. Although I would not lay down a general rule as to the proper remedy in cases adversely affected by the calendar system here in question, in the full circumstances of this direct appeal from the conviction I would hold not only that the conviction should be reversed but also that the indictment should be dismissed under the provisions of Rule 48(b), Fed. R.Crim.P., authorizing dismissal “if there is unnecessary delay in bringing a defendant to trial * * *.” . 17 F.R.D. 183 (D.C.D.Md.1955), affirmed 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955). . 99 U.S.App.D.C. 183, 238 F.2d 259 (D.C. Cir.1956). . 82 U.S.App.D.C. 259, 163 F.2d 695 (D.C. Cir.1947). . 135 F.Supp. 230 (D.C.N.D.Ill.1955). . Cf. Brown v. United States, Misc. No. 925, D.C.Cir., Feb. 6, 1958, certiorari denied 357 U.S. 909, 78 S.Ct. 1154, 2 L.Ed.2d 1158 (1958). . 102 U.S.App.D.C. 51, 53, 250 F.2d 19, 21 (1957). . 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950 (1905). . See James v. United States, 104 U.S.App.D.C. 263, 261 F.2d 381, and eases there cited; also United States v. Lustman, 258 F.2d 475 (2 Cir., 1958), cer- tiorari denied 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). . In practice, the Government informs ns, when the District Court saw that a case which it could not reach on the scheduled day had already been automatically continued two or three times, it would depart from its routine and set the case for trial on the very next day rather than the next “available” date. Thus, in the instant case, when trial could not be had on March 20, 1957, the District Court, noting that there had already" }, { "docid": "11968657", "title": "", "text": "by a commissioner. If this is done there is no right to or occasion for a preliminary hearing before a commissioner. The relator’s contention that he was denied a hearing before a commissioner is, therefore, wholly without merit. The relator’s other contentions amount solely to an attack upon the competency of the evidence upon which he was convicted. These contentions were fully considered on the relator’s appeal from his conviction and were decided against him by this court. They involve no questions so fundamental that they may be raised on a motion in the nature of a writ of coram nobis. The order of the district court will be affirmed. . Commonwealth ex rel. Biglow v. Ashe, 1944, 348 Pa. 409, 35 A.2d 340; Commonwealth ex rel. Hornberger v. Burke, 1952, 53 Lanc.Law Rev.,Pa., 141. . Commonwealth ex rel. Atkins v. Pennsylvania Board of Parole, 1952, 63 Dauphin County Rep.,Pa., 239. . 61 P.S.,Pa., §§ 331.21, 331.21a. . See Ex parte Hull, 1941, 312 U.S. 546, 550, 61 S.Ct. 640, 85 L.Ed. 1034; and compare People v. McCullough, 1949, 300 N.Y. 107, 89 N.E.2d 335. . Lopez v. United States, 9 Cir., 1950, 186 F.2d 707; United States v. Bradford, 2 Cir., 1952, 194 F.2d 197, certiorari denied 343 U.S. 979, 72 S.Ct. 1079, 96 L.Ed. 1371; United States v. Lavelle, 2 Cir., 1952, 194 F.2d 202; Farnsworth v. United States, 1952, 91 U.S.App.D.C. 121, 198 F.2d 600, certiorari denied 344 U.S. 915, 73 S.Ct. 338, 97 L.Ed. 706; United States v. Kerschman, 7 Cir., 1953, 201 F.2d 682. . U. S. ex rel. Kassin v. Mulligan, 1935, 295 U.S. 396, 400, 55 S.Ct 781, 79 L. Ed. 1501; Garrison v. Johnston, 9 Cir., 1939, 104 F.2d 128, 130; O’Grady v. Hiatt, D.C.M.D.Pa.1943, 52 F.Supp. 213, affirmed 3 Cir., 1944, 142 F.2d 558; United States v. Liebrich, D.C.M.D.Pa. 1932, 55 F.2d 341; United States v. Gray, D.C.1949, 87 F.Supp. 436. . Barber v. United States, 4 Cir., 1944, 142 F.2d 805, 807. . United States v. Mayer, 1914, 235 U. S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129; United" }, { "docid": "13369272", "title": "", "text": "was influenced by the pending complaint in ordering him incarcerated from March to December, 1961 on a Federal alcohol violation. As was amply pointed out by Judge MacMahon in denying the defend ant’s motion, although 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. See Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); Stevenson v. United States, 107 U.S.App.D.C. 398, 278 F.2d 278 (1960). The government contends that the delay between arrest and indictment was due to the disappearance of the informant, Infanzone. Fearing for his safety, Infanzone left the United States for Puerto Rico, after having informed Agent Durham of his proposed flight. Soon after his arrival in Puerto Rico he disappeared, and prosecution of these defendants was delayed while an intensive search was conducted for this potentially important government witness. Under these circumstances, we find that the delay was entirely justified and not unreasonable. With respect to the eight-month period between the filing of the indictment and the government’s motion to have the defendants answer, it is sufficient answer that defendants made no effort during that period to accelerate proceedings against them. Whatever may be the rule elsewhere, see People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891, 57 A.L.R.2d 295 (1955), it is the rule of this Circuit and of other federal courts that the failure of a defendant to make a demand for a speedy trial constitutes a waiver of his rights. United States v. Lustman, 258 F.2d 475, 478 (2nd Cir.), cert. denied 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958) and cases cited therein. No effort of this kind was made by defendants in the period here in question. (2) SEVERANCE. Appellants do not object to their joinder under Rule 8(b), Federal Rules of Criminal Procedure. However, they assert that once the court below found that there was insufficient evidence on the conspiracy count against Mauro, any connection between Mauro and" }, { "docid": "12981799", "title": "", "text": "for his cooperation. This Court has held in numerous cases that the character of ,an informer does not disqualify him as a witness but his character may be considered in relation to his credibility. United States v. Baxter, 342 F.2d 773, C.A. 6; United States v. Cooper, 321 F.2d 456, 458, C.A. 6; and United States v. Walker, 320 F.2d 472, 475, C.A. 6, cert. den. 375 U.S. 934, 84 S.Ct. 339, 11 L.Ed.2d 266. See also, Puentes v. United States, 319 F.2d 581, 582, C.A. 5; United States v. Countryman, 311 F.2d 189, 191, C.A. 2; and United States v. Vittoria, 284 F.2d 451, 454, C.A. 7. Several questions pertaining to the admission of evidence are argued on behalf of the appeal of James Smith. These are all without merit. Evidence of a similar nature has been previously admitted in narcotics cases and upheld by this Court. Likewise, it has been held that the use of an informer, as Cohen was used in this case, does not constitute entrapment. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; United States v. Baxter, 342 F.2d 773, C. A. 6; Haynes v. United States, 319 F.2d 620, C.A. 5; United States v. Lile, 290 F.2d 225, C.A. 6; United States v. Lauer, 287 F.2d 633, C.A. 7; and Walker v. United States, 285 F.2d 52, C.A. 5. Another assignment of error is that the appellant James Smith was denied due process of law because he was indicted by the Grand Jury without having a preliminary hearing. This question has also been passed upon by this Court. We have held that a preliminary hearing is not essential to due process of law. See Dillard v. Bomar, 342 F.2d 789, C.A. 6, and cases cited therein. See also, United States ex rel, Kassin v. Mulligan, 295 U.S. 396, 400, 55 S.Ct. 781, 79 L.Ed. 1501, and Goldsby v. United States, 160 U.S. 70, 73, 16 S.Ct. 216, 40 L.Ed. 343. The judgment of the District Court is affirmed as to both appellants." }, { "docid": "22210491", "title": "", "text": "SHACKELFORD MILLER, Jr., Circuit Judge. Appellant filed motion in the District Court under the provisions of Section 2255, Title 28 U.S.Code, to vacate a judgment and sentence of twenty-five years under an indictment charging him with the offense of bank robbery, Section 2113, Title 18 U.S.Code. The allegations challenging the weight of the evidence cannot be considered in this collateral attack upon the judgment, in that they were properly reviewable by an appeal, which appellant did not prosecute. Whiting v. United States, 6 Cir., 196 F.2d 619. Nor can we consider the allegation that the conviction is based upon perjured testimony. Taylor v. United States, 9 Cir., 221 F.2d 228; Elliott v. United States, 8 Cir., 268 F.2d 135. There remains for consideration appellant’s additional contention that he was denied the effective assistance of counsel, and particularly his complaint that his counsel did not use a witness who appellant contends would have testified in his behalf, and that two other witnesses who would have testified for him were sent home by his counsel before the termination of the trial without being called to testify. Appellant’s counsel was of his own choosing. Under such circumstances the rule has been often stated that only if it can be said that what was or was not done by the defendant’s attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court, can a charge of inadequate legal representation prevail. Cofield v. United States, 9 Cir., 263 F.2d 686, 689; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, 792-793, certiorari denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86; Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, 670, certiorari denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002; United States v. Miller, 2 Cir., 254 F.2d 523; Anderson v. Bannan, 6 Cir., 250 F.2d 654, 655; United States ex rel. Feeley v. Ragen, 7 Cir., 166 F.2d 976, 980-981. In Anderson v. Bannan, supra, 6 Cir., 250 F.2d 654, 655, this Court pointed out, “A criminal trial before a" }, { "docid": "22313133", "title": "", "text": "CFR §§ 2.17, 2.32. His present custody is therefore legal, and the order directing his release cannot stand. In so holding, we reach a result similar to that of the cases requiring a speedy trial where a failure to object to an illegal delay until after trial constitutes a waiver of the objection. United States v. Lustman, 2 Cir., 258 F.2d 475, certiorari denied 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109; United States v. Kaye, 2 Cir., 251 F.2d 87, certiorari denied 356 U.S. 919, 78 S.Ct. 702, 2 L.Ed.2d 714; Ruben v. Welch, 4 Cir., 159 F.2d 493, certiorari denied 331 U.S. 814, 67 S.Ct. 1199, 91 L.Ed. 1833. The proper time to object to an unreasonable delay in granting a hearing is during that unreasonable delay. Since custody at that time is unlawful, habeas corpus might then lie to direct the release of the prisoner. United States ex rel. Rowe v. Nicholson, supra, 4 Cir., 78 F.2d 468, certiorari denied Rowe v. Nicholson, 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405; but see United States ex rel. Nicholson v. Dillard, 4 Cir., 102 F.2d 94, 95-96. Once the hearing is held, however, and the fact of violation is fairly adjudicated, custody is lawful. Moreover, then to •order the prisoner’s release would be a useless procedure, since he could be immediately arrested and, following a prompt but repetitious hearing, his parole would be revoked. The order appealed from is reversed. . Some time after the holding of the hearing, relator was transferred to the Federal Correctional Institution at Danbury, Connecticut, where be was being held at the time he sought the writ of habeas corpus. . In Phipps v. Pescor, D.C.W.D.Mo., 68 F.Supp. 242, 243, the court stated that “[a]fter being taken into custody petitioner was entitled to a hearing at the next meeting of the Board of Paroles”; but in so stating, it did not consider the consequences of an unreasonable delay in holding such next meeting." }, { "docid": "6816961", "title": "", "text": "an indictment. It was not necessary that he have a preliminary hearing for the purpose of holding him to the Grand Jury. United States ex rel. Kassin v. Mulligan, 295 U.S. 396, 400, 55 S.Ct. 781, 79 L.Ed. 1501; Barrett v. United States, 8 Cir., 270 F.2d 772, 775-776. Illegal arrest, illegal detention, and delay in bringing a defendant to trial are not questions which can be raised in a Section 2255 proceeding. Plummer v. United States, 104 U.S.App.D.C. 211, 260 F.2d 729, 730; United States v. Williams, 7 Cir., 212 F.2d 786; Sutton v. United States, 4 Cir., 267 F.2d 271; Rule 48(b), Rules of Criminal Procedure, 18 U.S.C.; United States v. Lustman, 2 Cir., 258 F.2d 475, 478, certiorari denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109. The right of appellant as an indigent defendant to have witnesses subpoenaed by the Court is governed by Rule 17(b), Rules of Criminal Procedure. The record fails to show that the appellant complied with the provisions of this rule. A denial of a request that witnesses be subpoenaed is reviewable on appeal for abuse of discretion only. Reid v. Charney, 6 Cir., 235 F.2d 47. It cannot be raised in a Section 2255 proceeding. Goss v. United States, 6 Cir., 179 F.2d 706; Carvell v. United States, 4 Cir., 173 F.2d 348. We are of the opinion that there is no merit in appellant’s contention that he was denied the effective assistance of counsel. O’Malley v. United States, 6 Cir., 285 F.2d 733, 734; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, certiorari denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86; Johnson v. Unit ed States, 6 Cir., 239 F.2d 698, certiorari denied, 354 U.S. 940, 77 S.Ct. 1404, 1 L.Ed.2d 1539; Burgett v. United States, 8 Cir., 237 F.2d 247, certiorari denied, 352 U.S. 1031, 77 S.Ct. 596, 1 L.Ed.2d 599. The judgment is affirmed." }, { "docid": "2734924", "title": "", "text": "Socony-Vacuum Oil Co., 310 U.S. 150, 240, 60 S.Ct. 811, 84 L.Ed. 1129; United States v. Freeman, 167 F.2d 786, 791 (7th Cir. 1948), certiorari denied, 335 U.S. 817, 69 S.Ct. 37, 93 L.Ed. 372; United States v. Ramos, 268 F.2d 878, 880 (2d Cir. 1959). At most, it amounted to irrelevant oratory, harmless to this trial. Cf. United States v. Fidanzi, 411 F.2d 1361, 1362 (7th Cir. 1969), certiorari denied, 396 U.S. 929, 90 S.Ct. 265, 24 L.Ed.2d 227; United States v. Hoffman, 415 F.2d 14, 21 (7th Cir. 1969), certiorari denied, 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 423. VIII Having reviewed the determination of respondent’s guilt, we turn to consider the propriety of the 3-year sentence imposed by the district judge. Punishment of criminal contempt should reflect the “least possible power adequate to the end proposed.” Anderson v. Dunn, 19 U.S. (6 Wheal.) 204, 231, 5 L.Ed. 242. Appellate courts bear “special responsibility” for preventing abuse of the contempt power, and this Court has the power in appropriate circumstances to revise sentences inflicted upon contemnors whether trial has been by judge or jury. Green v. United States, 356 U.S. 165, 188, 78 S.Ct. 632, 2 L.Ed.2d 672; Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 16 L.Ed.2d 629; United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677; United States ex rel. Robson v. Malone, 412 F.2d 848 (7th Cir. 1969); Sehnurman v. United States, 126 U.S.App.D.C. 315, 379 F.2d 92 (1967); United States v. Conole, 365 F.2d 306 (3d Cir. 1966), certiorari denied, 385 U.S. 1025, 87 S.Ct. 743, 17 L.Ed.2d 673. Pertinent to this inquiry are “the extent of the willful and deliberate defiance of the court’s order, the seriousness of the consequences of the contumacious behavior, the necessity of effectively terminating the defendant’s defiance as required by the public interest, and the importance of deterring such acts in the future.” United States v. United Mine Workers of America, 330 U.S. at p. 303, 67 S.Ct. at p. 701. The range of conduct set forth in the Petition for Rule" }, { "docid": "23299208", "title": "", "text": "well settled principles in the absence of a showing to the contrary and here there is no such showing. From an examination of the entire record, we conclude that appellant’s Constitutional rights were not violated in the criminal contempt proceeding and therefore the lower court’s denial of his motion is Affirmed. . Yates v. Looney, 10 Cir., 250 F.2d 956. . Yates v. United States, 10 Cir., 308 F.2d 737. . 28 U.S.C. § 2255; Puckett v. United States, 10 Cir., 314 F.2d 298. . See, e. g., Goforth v. United States, 10 Cir., 304 F.2d 884; Frand v. United States, 10 Cir., 289 F.2d 693; Mays v. United States, 10 Cir., 216 F.2d 186. . Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672; United States v. Thompson, 2 Cir., 214 F.2d 545, cert. denied, 348 U.S. 841, 75 S.Ct. 48, 99 L.Ed. 663; United States v. Hall, 2 Cir., 198 F.2d 726, 34 A.L.R.2d 1088, cert. denied, 345 U.S. 905, 73 S.Ct. 641, 97 L.Ed. 1341. . Green v. United States, supra, 356 U.S. at pages 183-187, 78 S.Ct. at pages 642-645, 2 L.Ed.2d 672; United States v. De Simone, 2 Cir., 267 F.2d 741, cert. denied, 361 U.S. 827, 80 S.Ct. 74, 4 L.Ed.2d 70. . MacNeil v. United States, 1 Cir., 236 F.2d 149, 61 A.L.R.2d 1075, cert. denied, 352 U.S. 912, 77 S.Ct. 150, 1 L.Ed.2d 119. . Bullock v. United States, 6 Cir., 265 F.2d 683, 690, 691, cert. denied, 360 U.S. 909, 79 S.Ct. 1294, 3 L.Ed.2d 1260. . Kelton v. United States, 3 Cir., 294 F. 491, cert. denied, 264 U.S. 590, 44 S.Ct. 403, 68 L.Ed. 864; United States v. Thompson, supra; United States v. Hall, supra. . Green v. United States, supra; MacNeil v. United States, supra. . Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767; United States ex rel. Bowles v. Seidmon, 7 Cir., 154 F.2d 228, 230. . Yates agreed that the facts as related by his attorney were correct. . “Q. Now, under the procedure and the effect" }, { "docid": "22998275", "title": "", "text": "of “public justice” considerations, Williams v. United States, 102 U.S.App.D.C. 51, 53, 250 F.2d 19, 21 (1957), where the appellant had been confined for seven years. . 198 U.S. at 87, 25 S.Ct. at 576, 49 L.Ed. 950; the principles announced in the Beavers case were held to govern and did not amount to a denial of the right where a trial was held sixteen months after indictment in Stevenson v. United States, 197 U.S.App.D.C. 398, 278 F.2d 278 (1960). . Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) ; King v. United States, en banc, 105 U.S.App.D.C. 193, 196, 265 F.2d 567, 570, cert. denied, 359 U.S. 998, 79 S.Ct. 1124, 3 L.Ed.2d 986 (1959). . See, for example, Taylor v. United States, 99 U.S.App.D.C. 183, 238 F.2d 259 (1956), where there had been no indictment for more than three years and no-prosecution for two years thereafter; United States v. McWilliams, 82 U.S.App.D.C. 259, 163 F.2d 695 (1947), where the prosecution secured postponements in its effort to gather new evidence; and see the cases illustrating “oppression” in Petition of Provoo, 17 F.R.D. 183 (D.Md.), aff’d by memorandum, 350 U.S. 857, 76-S.Ct. 101, 100 L.Ed. 761 (1955). . Even where a 4-year delay has occurred,. United States v. Lustman, 258 F.2d 475, 478 (2 Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). . Id.; and see James v. United States, 104 U.S.App.D.C. 263, 261 F.2d 381 (1958), cert. denied, 359 U.S. 930, 79 S. Ct. 613, 3 L.Ed.2d 631 (1959). . Compare United States v. Graham, 289 F.2d 352 (7 Cir. 1961), where the accused had kept the court occupied with various proceedings. . For tliat reason we do not now condemn the District Court’s calendar system although it has been under critical scrutiny in certain cases. See, e. g., King v. United States, supra note 9; Willis v. United States, 106 U.S.App.D.C. 211, dissenting opinion at 219, 271 F.2d 477, 485 (1959) ; Porter v. United States, 106 U.S.App.D.C. 150, 270 F.2d 453 (1959), cert. denied, 363" }, { "docid": "17318646", "title": "", "text": "States v. Kancso, 2 Cir., 1958, 252 F.2d 220, 224; United States v. Volkell, 2 Cir., 251 F.2d 333, 336, certiorari denied 1958, 356 U.S. 962, 78 S.Ct. 1000, 2 L.Ed.2d 1068; United States v. Walker, 7 Cir., 1957, 246 F.2d 519, 527. See also Williams v. United States, 9 Cir., 273 F.2d 781, 791, certiorari denied 1960, 362 U.S. 951, 80 S.Ct. 862, 4 L.Ed.2d 868 (informer was paid employee), relied on by the majority here. The events which the majority hold gave rise to a reasonable belief that the appellant was guilty of a crime under the narcotics laws on March 9, 1959 occurred in August and September of 1958. This fact casts further doubt on the validity of the majority holding here that the officers had probable cause at 8:15 P.M. on March 9, 1959 to believe that DiBella had committed a narcotics crime recently enough, or was at that moment committing one, so as to justify the warrantless arrest. It is true enough that in cases where the officer has been armed with a valid arrest warrant the rule appears to be that the warrant need not be executed at the first opportunity. But, on the other hand, execution should not be unreasonably delayed. United States v. Joines, 3 Cir., 258 F.2d 471, certiorari denied 1958, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109. The unreasonableness of a delay would depend upon the circumstances present in the particular situation, but thus far no case has been called to my attention, and I have not discovered any, where the courts have approved as reasonable an interval longer than a month between the issuance and the execution of the warrant where there has been opportunity in the meantime to make the arrest. See United States v. Joines, supra (21 days); Seymour v. United States, 1949, 85 U.S.App.D.C. 366, 177 F.2d 732 (6 days); State v. Kopelow, 1927, 126 Me. 384, 138 A. 625 (7 days); State v. Nadeau, 1903, 97 Me. 275, 54 A. 725 (23 days); Kent v. Miles, 1897, 69 Vt. 379, 37 A. 1115" }, { "docid": "22933737", "title": "", "text": "869, 86 S.Ct. 1840, 16 L.Ed.2d 973, while recognizing “ ‘the long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts’ ” reaffirmed the holding of Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323, rehearing den. 361 U.S. 855, 80 S.Ct. 42, 4 L.Ed.2d 94, that upon demonstration of a “particularized need” a trial judge may permit the production and examination of the grand jury’s minutes. The “particularized need” present in both the Dennis and Pittsburgh Plate Glass Co. cases was the possible impeachment of witnesses upon cross-examination at the trial. In the present case the attorney for Zimmerman requested production of the minutes to substantiate facts which were already stipulated. The trial judge, in the absence of a showing of a valid need for their production, properly refused to permit the defense to examine them. Defendant Luxenberg’s contention that he was denied due process of law because an indictment was returned against him without first granting him a preliminary examination as required by Rule 5 of the F.R.Cr.P. is without merit. This court has repeatedly held that there is no denial of due process where a person is indicted by the Grand Jury without having a preliminary examination. There is no constitutional requirement for such an examination. United States v. Smith, 343 F.2d 847, cert. den. 382 U.S. 824, 86 S.Ct. 55, 15 L.Ed.2d 69; Dillard v. Bomar, 342 F.2d 789, cert. den. 382 U.S. 883, 86 S.Ct. 176, 15 L.Ed.2d 123; United States v. Shields, 291 F.2d 798, cert. den. 368 U.S. 933, 82 S.Ct. 371, 7 L.Ed.2d 196, rehearing den. 368 U.S. 962, 82 S.Ct. 401, 7 L.Ed.2d 393; Boone v. United States, 280 F.2d 911 (C.A.6). See also, United States ex rel. Kassin v. Mulligan, 295 U.S. 396, 55 S.Ct. 781, 79 L.Ed. 1501; Goldsby v. United States, 160 U.S. 70, 16 5. Ct. 216, 40 L.Ed. 343. Defendant Luxenberg assigns as error the failure of the trial judge to grant his motion for a directed verdict at the close of the" }, { "docid": "22313132", "title": "", "text": "Federal Correctional Institution, Danbury, Connecticut, Civil No. 8312, June 27, 1960, D.Conn. [190 F.Supp. 689].” If the delay in granting a hearing were to prevent a prisoner from having the fair hearing contemplated by statute, he would be entitled to release. Cf. Moore v. Reid, 100 U.S.App.D.C. 373, 246 F.2d 654. In such a situation, however, the illegality of his detention arises from the failure to provide an effective hearing, rather than primarily from the delay. In the present case there is no finding that the hearing eventually provided the relator was deficient, although relator made allegations to that effect. The probation reports established that relator had violated the conditions of parole by engaging in the policy racket and by filing false reports. At the hearing, relator stated that the police gave him permission to play the numbers in order to find out who murdered his brother. Even if true, this would not excuse the failure to file accurate reports ; and relator was properly adjudicated a parole violator. Cf. 18 U.S.C. § 4203(a); 28 CFR §§ 2.17, 2.32. His present custody is therefore legal, and the order directing his release cannot stand. In so holding, we reach a result similar to that of the cases requiring a speedy trial where a failure to object to an illegal delay until after trial constitutes a waiver of the objection. United States v. Lustman, 2 Cir., 258 F.2d 475, certiorari denied 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109; United States v. Kaye, 2 Cir., 251 F.2d 87, certiorari denied 356 U.S. 919, 78 S.Ct. 702, 2 L.Ed.2d 714; Ruben v. Welch, 4 Cir., 159 F.2d 493, certiorari denied 331 U.S. 814, 67 S.Ct. 1199, 91 L.Ed. 1833. The proper time to object to an unreasonable delay in granting a hearing is during that unreasonable delay. Since custody at that time is unlawful, habeas corpus might then lie to direct the release of the prisoner. United States ex rel. Rowe v. Nicholson, supra, 4 Cir., 78 F.2d 468, certiorari denied Rowe v. Nicholson, 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed." }, { "docid": "5267301", "title": "", "text": "all respects complied with the requirements of Rule 44 of the Federal Rules of Civil Procedure, made applicable in criminal cases by Criminal Rule 27. We find no grounds for reversal and the judgment is accordingly affirmed. . See: United States v. Mitchell, 322 U.S. 65, 69-71, 64 S.Ct. 896, 88 L.Ed. 1140; Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 93 L.Ed. 100; Trilling v. United States, 104 U.S.App.D.C. 159, 260 F.2d 677; Perry v. United States, 102 U.S.App.D.C. 315, 253 F.2d 337, c.d. 356 U.S. 941, 78 S.Ct. 785, 2 L.Ed.2d 816; Feguer v. United States, 8 Cir., 302 F.2d 214, 250-252, c.d. 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110. . Papworth v. United States, 5 Cir., 256 F.2d 125, 128, c.d. 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88, rehearing denied, 358 U.S. 914, 79 S.Ct. 239, 3 L.Ed.2d 235; United States v. Coppola, 2 Cir., 281 F.2d 340, 342-345, aff. 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79. Cf. Anderson v. United States, 318 U.S. 350, 356, 63 S.Ct. 599, 87 L.Ed. 829; Brown v. United States, 5 Cir., 228 F.2d 286, 289, c.d. 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500, rehearing den. 352 U.S. 861, 77 S.Ct. 27, 1 L.Ed.2d 71; Carpenter v. United States, 4 Cir., 264 F.2d 565, 571, c.d. 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548. . See: O’Dell v. United States, 10 Cir., 251 F.2d 704, 707-708; Wood v. United States, 10 Cir., 317 F.2d 736. . Dunn v. United States, 10 Cir., 98 F.2d 119, 120; Garhart v. United States, 10 Cir., 157 F.2d 777, 779; Segurola v. United States, 275 U.S. 106, 111, 48 S.Ct. 77, 72 L.Ed. 186; Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307. . See: Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751, 758, c.d. 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552; United States v. Walker, 2 Cir., 197 F.2d 287, 289, c.d. 344 U.S. 877, 73 S.Ct. 172, 97 L.Ed. 679. . Carroll" } ]

[ { "docid": "22746567", "title": "", "text": "concluded that jurisdiction by appeal does not lie, but, treating the papers as a petition for a writ of certiorari, we hereby grant the petition and reverse the judgment below. II The Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants. See Shaffer v. Heitner, 433 U. S. 186, 198-200 (1977). It has long been the rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant. Pennoyer v. Neff, 95 U. S. 714, 732-733 (1878); International Shoe Co. v. Washington, 326 U. S., at 316. The existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought, Mullane v. Central Hanover Trust Co., 339 U. S. 306, 313-314 (1950), and a sufficient connection between the defendant and the forum State to make it fair to require defense of the action in the forum. Milliken v. Meyer, 311 U. S. 457, 463-464 (1940). In this case, appellant does not dispute the adequacy of the notice that he received, but contends that his connection with the State of California is too attenuated, under the standards implicit in the Due Process Clause of the Constitution, to justify imposing upon him the burden and inconvenience of defense in California. The parties are in agreement that the constitutional standard for determining whether the State may enter a binding judgment against appellant here is that set forth in this Court’s opinion in International Shoe Co. v. Washington, supra: that a defendant “have certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” 326 U. S., at 316, quoting Milliken v. Meyer, supra, at 463. While the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff’s forum of choice are, of course, to" } ]

[ { "docid": "22630119", "title": "", "text": "a due process challenge in Simpson v. Loehmann, 21 N. Y. 2d 305, 234 N. E. 2d 669 (1967), reargument denied, 21 N. Y. 2d 990, 238 N. E. 2d 319 (1968). The New York court relied on Harris v. Balk, 198 U. S. 215 (1905), in holding that the presence of the debt in the State was sufficient to permit quasi in rem jurisdiction over the absent defendant. The court also concluded that the exercise of jurisdiction was permissible under the Due Process Clause because, “ [v] iewed realistically, the insurer in a case such as the present is in full control of the litigation” and “where the plaintiff is a resident of the forum state and the insurer is present in and regulated by it, the State has a substantial and continuing relation with the controversy.” Simpson v. Loehmann, supra, at 311, 234 N. E. 2d, at 672. The United States Court of Appeals for the Second Circuit gave its approval to Seider in Minichiello v. Rosenberg, 410 P. 2d 106, adhered to en banc, 410 F. 2d 117 (1968), cert. denied, 396 U. S. 844 (1969), although on a slightly different rationale. Judge Friendly construed Seider as “in effect a judicially created direct action statute. The insurer doing business in New York is considered the real party in interest and the nonresident insured is viewed simply as a conduit, who has to be named as a defendant in order to provide a conceptual basis for getting at the insurer.” 410 F. 2d, at 109; see Donawitz v. Danek, 42 N. Y. 2d 138, 142, 366 N. E. 2d 253, 255 (1977). The court held that New York could constitutionally enact a direct action statute, and that the restriction of liability to the amount of the policy coverage made the policyholder’s personal stake in the litigation so slight that the exercise of jurisdiction did not offend due process. New York has continued to adhere to Seider New Hampshire has followed Seider if the defendant resides in a Seider jurisdiction, but not in other cases. Minnesota is the only" }, { "docid": "1277118", "title": "", "text": "longer exists for the factor of insurance is now one of the essential elements of the pending cause of action (see Oltarsh v. Aetna Ins. Co., supra, 15 N.Y.2d p. 118, 256 N.Y.S.2d 577, 204 N.E.2d 622). To hold that service on the attorney retained by the insurance company does not constitute service upon the insurer only serves to perpetuate this fiction. That it is fiction is abundantly demonstrated by the present case. The services of Glatzer, Glatzer & Evans were retained and paid for by the insurer. They had complete control of the defense „ in the negligence action.” Seider v. Roth and Simpson came under exacting constitutional scrutiny in Minichiello v. Rosenberg, 2d Cir. 1968, 410 F.2d 106, and Farrell v. Piedmont Aviation, Inc., 2d Cir. 1969, 411 F.2d 812. Judge Friendly wrote in both cases. In the first, treating Seider v. Roth and Simpson as “in effect a judicially created direct action statute,” he concluded that it was not invalid. Of Watson the court said (410 F.2d at 110): “. . . the Justice’s final consideration — the plaintiff’s difficulty in bringing the defendant before the forum — applies with even greater force to the state of plaintiff’s residence than to that of injury in light of the development of long-arm statutes that will generally allow the state of injury to obtain personal jurisdiction of the insured and so avoid the need for a direct action against the insurer. “We thus believe that, all things considered, the Supreme Court would sustain the validity of a state statute permitting direct action against insurers doing business in the state in favor of residents as ■well as on behalf of persons injured in it.” The state’s interest in protecting its residents was considered to be as great as its interest in a nonresident’s in-state accident. The burden to the named defendant was considered as largely swept away by. the Simpson limitation of the recovery to the face amount of the policy, possibly a constitutionally required limitation. On rehearing in banc, Judge Friendly used Harris v. Balk to meet the argument" }, { "docid": "1277109", "title": "", "text": "contract of liability insurance. Again, the New York action was brought against a resident of Connecticut by a New York resident injured off the Connecticut shore in a boating accident, and the insurer was a Pennsylvania company doing business in New York. Chief Judge Fuld, writing for two of the judges, repeated the language from the majority opinion in Seider v. Roth that counted on Matter of Riggle's Estate and compared the policy implications of Oltarsh with those urged in Seider v. Roth. The Chief Judge then said (21 N.Y.2d at 310-311,287 N.Y.S.2d at 636, 234 N.E.2d at 671): “As demonstrated by a reading of the majority and dissenting opinions in the Seider case, the question whether the insurer’s obligation constitutes a debt owing to the insured defendant and, as such, is subject to attachment under the CPLR was thoroughly debated and considered. It was our opinion when we decided- that case, and it still is, that jurisdiction in rem was acquired by the attachment in view of the fact that the policy obligation was a debt to the defendant. And we perceive no denial of due process since the presence of that debt in this State (see, e. g., Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023) — contingent or inchoate though it may be — represents sufficient of a property right in the defendant to furnish the nexus with, and the.interest in, New York to empower its courts to exercise an in rem jurisdiction over him. It is, of course, hardly necessary to add that neither the Seider decision nor the present one purports to expand the basis for in personam jurisdiction in view of the fact that the recovery is necessarily limited to the value of the asset attached, that is, the liability insurance policy. For the purpose of pending litigation, which looks to an ultimate judgment and recovery, such value is its face amount and not some abstract or hypothetical value. “The argument that our decision sanctions a ‘direct action’ against the insurer is sufficiently answered by what we wrote in Seider" }, { "docid": "1277110", "title": "", "text": "a debt to the defendant. And we perceive no denial of due process since the presence of that debt in this State (see, e. g., Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023) — contingent or inchoate though it may be — represents sufficient of a property right in the defendant to furnish the nexus with, and the.interest in, New York to empower its courts to exercise an in rem jurisdiction over him. It is, of course, hardly necessary to add that neither the Seider decision nor the present one purports to expand the basis for in personam jurisdiction in view of the fact that the recovery is necessarily limited to the value of the asset attached, that is, the liability insurance policy. For the purpose of pending litigation, which looks to an ultimate judgment and recovery, such value is its face amount and not some abstract or hypothetical value. “The argument that our decision sanctions a ‘direct action’ against the insurer is sufficiently answered by what we wrote in Seider v. Roth (17 N.Y.2d 111, at p. 114, 269 N.Y.S.2d 99, 216 N.E.2d 312): ‘It is said that by affirmance here we would be setting up a “direct action against the insurer. That is true to the extent only that affirmance will put jurisdiction in New York State and require the insurer to defend here, not because a debt owing by it to the defendant has been attached but because by its policy it has agreed to defend in any place where jurisdiction is obtained against its insured.’ ” Since the authority of Harris v. Balk has been overshadowed by Shaffer, although the Court may not have overruled it in explicit terms, it is important that Chief Judge Fuld noted separately the predicate considerations of Seider v. Roth. He said (21 N.Y.2d at 311-312, 287 N.Y.S.2d at 637, 234 N.E.2d at 672): “The historical limitations on both in personam and in rem jurisdiction, with their rigid tests, are giving way to a more realistic and reasonable evaluation of the respective rights of plaintiffs, defendants and" }, { "docid": "1277104", "title": "", "text": "forum of her residence. The question, here, is not whether the process is good as quasi-in-rem process, but whether exercising jurisdiction comports with due process in light of Shaffer. And it may be as well to bear in mind that no jurisdictional issue has created more controversy in the last decade than that posed by Seider v. Both, and that Shaffer nowhere refers to the Seider v. Roth assertion of jurisdiction unless, as plaintiff intimates, it did so in its reference in footnote 30 to Smit, The Enduring Utility of In Rem Rules, 1977, 43 Brooklyn L.Rev. 600 (which approved Seider v. Roth) and in saying in the footnote that the Court did not suggest that jurisdictional doctrines other than those discussed in text, such as particularized rules governing adjudication of status, are inconsistent with the standard of fairness. Seider v. Roth was an action by New York residents against a resident of Quebec arising out of an accident in Vermont. Plaintiffs served a levy under, an order of attachment on the casualty insurance company which had issued an automobile liability policy to defendant. The majority put the decision on the ground that the policy was a “debt” owed to defendant which could be seized in attachment under N.Y.C. P.L.R. § 6202 in light of Section 5201, which defines debt very inclusively. The court relied on Matter of Riggle’s Estate, 1962,11 N.Y.2d 73, 226 N.Y.S.2d 416, 181 N.E.2d 436; that case had held that the existence of such a liability policy covering a deceased non-resident could furnish the asset basis for appointing a New York Ancillary Administrator (with will annexed) to continue the defense of an action commenced against the decedent during his lifetime; the action arose out of an accident in Wyoming and the plaintiff resided in New York. Riggle and Seider v. Roth cited Furst v. Brady, 1940, 375 Ill. 425, 31 N.E.2d 606, in which before suit an administrator was appointed for a deceased non-resident based on an asset consisting of a liability policy. Suits were thereafter commenced against the administrator, and the decedent’s daughter then sought" }, { "docid": "22630138", "title": "", "text": "“functional equivalent” of a so-called direct-action statute. The impact of the judgment is against the insurer. I believe such a direct-action statute is valid as applied to a suit brought by a forum resident, see Watson v. Employers Liability Assurance Corp., 348 U. S. 66, 72, even if the accident giving rise to the action did not occur in the forum State, see Minichiello v. Rosenberg, 410 F. 2d 106 (CA2 1968), cert. denied, 396 U. S. 844, so long as it is understood that the forum may exercise no power whatsoever over the individual defendant. As so understood, it makes no difference whether the insurance company is sued in its own name or, as Minnesota law provides, in the guise of a suit against the individual defendant. In this case, although appellant Rush may have a contractual obligation to his insurer to appear in court to testify and generally to cooperate in the defense of the lawsuit, it is my understanding that Minnesota law does not compel him to do so through the contempt power or otherwise. Moreover, any judgment formally entered against the individual defendant may only be executed against the proceeds of his insurance policy. In my opinion, it would violate the Due Process Clause to make any use of such a judgment against that individual — for .example, by giving the judgment collateral-estoppel effect in a later action against him arising from the same accident. Accord, Minichiello v. Rosenberg, supra, at 112; Note, The Constitutionality of Seider v. Roth after Shaffer v. Heitner, 78 Colum. L. Rev. 409, 418-419 (1978). But we are not now faced with any problem concerning use of a quasi in rem judgment against an individual defendant personally. I am therefore led to the conclusion that the Federal Constitution does not require the Minnesota courts to dismiss this action. It seems to me that the possible impact of a default judgment on the reputation of an individual, see ante, at 331, n. 20, who has no contacts whatever with the forum State is far too remote to affect the analysis of the" }, { "docid": "22630117", "title": "", "text": "of obtaining quasi in rem jurisdiction when the incident giving rise to the action occurs outside Minnesota but the plaintiff is a Minnesota resident when the suit is filed. Second, the court held that the assertion of jurisdiction over Rush was constitutional because he had notice of the suit and an opportunity to defend, his liability was limited to the amount of the policy, and the garnishment procedure may be used only by Minnesota residents. The court expressly recognized that Rush had engaged in no voluntary activity that would justify the exercise of in per-sonam jurisdiction. The court found, however, that considerations of fairness supported the exercise of quasi in rem jurisdiction because in accident litigation the insurer controls the defense of the case, State Farm does business in and is regulated by the State, and the State has an interest in protecting its residents and providing them with a forum in which to litigate their claims. Rush appealed to this Court. We vacated the judgment and remanded the cause for further consideration in light of Shaffer v. Heitner, 433 U. S. 186 (1977). 433 U. S. 902 (1977). On remand, the Minnesota Supreme Court held that the assertion of quasi in rem jurisdiction through garnishment of an insurer’s obligation to an insured complied with the due process standards enunciated in Shaffer. 272 N. W. 2d 888 (1978) (Savchuk II). The court found that the garnishment statute differed from the Delaware stock sequestration procedure held unconstitutional in Shaffer because the garnished property was intimately related to the litigation and the garnishment procedure paralleled the asserted state interest in “facilitating recoveries for resident plaintiffs.” 272 N. W. 2d, at 891. This appeal followed. II The Minnesota Supreme Court held that the Minnesota garnishment statute embodies the rule stated in Seider v. Roth, 17 N. Y. 2d 111, 216 N. E. 2d 312 (1966), that the contractual obligation of an insurance company to its insured under a liability insurance policy is a debt subject to attachment under state law if the insurer does business in the State. Seider jurisdiction was upheld against" }, { "docid": "22630118", "title": "", "text": "of Shaffer v. Heitner, 433 U. S. 186 (1977). 433 U. S. 902 (1977). On remand, the Minnesota Supreme Court held that the assertion of quasi in rem jurisdiction through garnishment of an insurer’s obligation to an insured complied with the due process standards enunciated in Shaffer. 272 N. W. 2d 888 (1978) (Savchuk II). The court found that the garnishment statute differed from the Delaware stock sequestration procedure held unconstitutional in Shaffer because the garnished property was intimately related to the litigation and the garnishment procedure paralleled the asserted state interest in “facilitating recoveries for resident plaintiffs.” 272 N. W. 2d, at 891. This appeal followed. II The Minnesota Supreme Court held that the Minnesota garnishment statute embodies the rule stated in Seider v. Roth, 17 N. Y. 2d 111, 216 N. E. 2d 312 (1966), that the contractual obligation of an insurance company to its insured under a liability insurance policy is a debt subject to attachment under state law if the insurer does business in the State. Seider jurisdiction was upheld against a due process challenge in Simpson v. Loehmann, 21 N. Y. 2d 305, 234 N. E. 2d 669 (1967), reargument denied, 21 N. Y. 2d 990, 238 N. E. 2d 319 (1968). The New York court relied on Harris v. Balk, 198 U. S. 215 (1905), in holding that the presence of the debt in the State was sufficient to permit quasi in rem jurisdiction over the absent defendant. The court also concluded that the exercise of jurisdiction was permissible under the Due Process Clause because, “ [v] iewed realistically, the insurer in a case such as the present is in full control of the litigation” and “where the plaintiff is a resident of the forum state and the insurer is present in and regulated by it, the State has a substantial and continuing relation with the controversy.” Simpson v. Loehmann, supra, at 311, 234 N. E. 2d, at 672. The United States Court of Appeals for the Second Circuit gave its approval to Seider in Minichiello v. Rosenberg, 410 P. 2d 106, adhered to" }, { "docid": "1693018", "title": "", "text": "matter jurisdiction existed, he remanded the case to Judge Lasker in the Southern District of New York. Judge Lasker held on December 18, 1979, that under New York conflicts of laws principles the New Jersey charitable limitation would not apply to suits brought by New York residents, and accordingly declined to dismiss for lack of subject matter jurisdiction. 482 F.Supp. 629. Meanwhile the Supreme Court was reconsidering the legitimacy of quasi-in-rem jurisdiction in general, and of Seider -type attachment jurisdiction in particular. When Mrs. Holzsager first brought this suit in 1976, the constitutional legitimacy of Seider jurisdiction was established in this Circuit, Minichiello v. Rosenberg, 410 F.2d 106 (2d Cir. 1968) (en banc), cert. denied, 396 U.S. 949, 90 S.Ct. 370, 24 L.Ed.2d 254 (1969), and in New York State, Victor v. Lyon Associates, Inc., 21 N.Y.2d 695, 287 N.Y.S.2d 424, 234 N.E.2d 459 (1967). At the same time, the rule had met with considerable criticism. See sources cited in Donawitz v. Danek, 42 N.Y.2d 138, 141-42, 397 N.Y.S.2d 592, 366 N.E.2d 253 (1977), and in Minichiello v. Rosenberg, supra, 410 F.2d at 108. On June 24, 1977, the Supreme Court decided Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), applying minimum contacts analysis to quasi-in-rem jurisdiction for the first time. Then, after this Court had declared Seider’s constitutionality unaffected by Shaffer in O’Connor v. Lee-Hy Paving Corp., 579 F.2d 194 (2d Cir.), cert. denied, 439 U.S. 1034, 99 S.Ct. 638, 58 L.Ed.2d 696 (1978), the Supreme Court declared Seider -type attachments unconstitutional in Rush v. Savchuk, supra. Shortly after Rush was decided, the Hospital moved to dismiss this case for lack of personal jurisdiction. Judge Lasker denied this motion. Though he agreed with the Hospital that it was not precluded by waiver, estoppel or consent from raising objections to the court’s jurisdiction over its person, he concluded that Rush should not be applied retroactively to eliminate the court’s personal jurisdiction over the Hospital. He then certified both the waiver issue and the retroactivity issue to this court pursuant to 28 U.S.C. § 1292(b). DISCUSSION" }, { "docid": "9758453", "title": "", "text": "May 14, 1979, it filed an amended third-party complaint against a number of individuals, including Theodore E. Wilkins. Third-party defendant Wilkins is Executive Vice-President and Treasurer of Oxford Life Insurance Co., the entity which acquired, and then subsequently retired, the bond anticipation note issued by the Facilities Corporation. The complaint alleges, among other things, that Mr. Wilkins and others violated certain securities laws, and seeks indemnity, partial indemnity, and contribution from Mr. Wilkins. Mr. Wilkins responded to this complaint by filing the motion to dismiss which is now before the court. A. MINIMUM CONTACTS Distilled to its essentials, defendant Wilkins’ position is that since the “minimum contacts” doctrine of International Shoe applies to a federal securities fraud action in this circuit and since he was never in this state on business regarding the matters which are the subject of this litigation, then the third-party complaint should be dismissed because there is no in personam jurisdiction, irrespective of § 27 of the Securities Exchange Act. The court does not agree. The Supreme Court, in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) held that: due process requires only that in order to subject a defendant to judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” More recently, the Court in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) extensively discussed the restraints which due process imposes on jurisdictional power and concluded “that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” Id. at 212, 97 S.Ct. at 2584. Both International Shoe and Shaffer spoke directly of state court jurisdiction. One of the most complete and thorough examinations of the restrictions that due process might impose on federal jurisdiction over persons is found in Fitzsimmons v. Barton, 589 F.2d 330 (7th Cir. 1979). In Fitzsimmons, a securities" }, { "docid": "9766273", "title": "", "text": "69, 24 L.Ed. 2d 94 (1969). The present case, however, is indicative of the multitude of problems that have arisen from the Seider doctrine; and we reiterate the hope that Judge Friendly expressed in Minichiello, supra, 410 F.2d at 119, that either the New York courts or its legislature would give further consideration to the Seider procedure and the complexities it has created. Under the Seider holding the obligation of an insurer to indemnify its insured is a debt capable of being attached under NYCPLR §§ 5201, 6202. Therefore, if jurisdiction is acquired over the insurer, see Morris Plan Industrial Bank v. Gunning, 295 N.Y. 324, 330, 67 N.E.2d 510 (1946), there is quasi in rem jurisdiction over out-of-state residents. Because the claim here did not arise out of acts done in New York, its long-arm statute, NYCPLR § 302, does not apply and consequently jurisdiction must be founded on NYCPLR § 301, which provides: “A court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore [before 1963].” This means, in effect, that for the purpose of ascertaining whether or not foreign corporations are subject to suit within the state, the New York courts will apply a “doing business” test. Although none of the leading cases in the Seider field has dealt explicitly with the issue of jurisdiction over the insurer-garnishee, they have all summarily stated that each of the respective insurers was “doing business” in New York, Sei-der, supra, 269 N.Y.S.2d at 100, 216 N.E.2d at 313; Simpson, supra, 287 N.Y. S.2d at 634, 635, 234 N.E.2d at 670; Minichiello, supra, 410 F.2d at 107, 108, 110, 121. Under New York law, however, “doing business” has no well-defined meaning. Judge Cardozo gave the generally accepted explanation of the term in Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 268, 115 N.E. 915, 918 (1917). He said: “[T]here is no precise test of the nature or extent of the business that must be done. All that is requisite is that enough be done to enable us to say that the corporation is here.” A" }, { "docid": "1277112", "title": "", "text": "the State in terms of fairness. (See, e. g., International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68.) Such an evaluation requires a practical appraisal of the situation of the various parties rather than an emphasis upon somewhat magical and medieval concepts of presence and power. Viewed realistically, the insurer in a case such as the present is in full control of the litigation; it selects the defendant’s attorneys; it decides if and when to settle; and it makes all procedural decisions in connection with the litigation (See, e. g., Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 167, 278 N.Y.S.2d 793, 225 N.E.2d 503.) Moreover, where the plaintiff is a resident of the forum state and the insurer is present in and regulated by it, the State has a substantial and continuing relation with the controversy. For jurisdictional purposes, in assessing fairness under the due process clause and in determining the public policy of New York, such factors loom large. “The position taken by some who disagree with Seider would require that, as a matter of State policy, insurance be explicitly eliminated as the basis for the exercise of our in rem jurisdiction but this represents a judgment requiring data and information with respect to the practical effect of the Seider decision not presently available to this court.” The language adumbrates Shaffer; it rests, as does Shaffer, on International Shoe. Judge Keating, concurring in the result, observed that the insurer in such a policy, must defend in any state in which the insured is involved in an accident, including direct action states — such as Louisiana. After speaking of the interest of direct action states in the lot of its residents injured in accidents occurring in the direct action state, Judge Keating continued “Similar State interests, it seems to me, would sustain a direct action against the insurer in this jurisdiction" }, { "docid": "22630120", "title": "", "text": "en banc, 410 F. 2d 117 (1968), cert. denied, 396 U. S. 844 (1969), although on a slightly different rationale. Judge Friendly construed Seider as “in effect a judicially created direct action statute. The insurer doing business in New York is considered the real party in interest and the nonresident insured is viewed simply as a conduit, who has to be named as a defendant in order to provide a conceptual basis for getting at the insurer.” 410 F. 2d, at 109; see Donawitz v. Danek, 42 N. Y. 2d 138, 142, 366 N. E. 2d 253, 255 (1977). The court held that New York could constitutionally enact a direct action statute, and that the restriction of liability to the amount of the policy coverage made the policyholder’s personal stake in the litigation so slight that the exercise of jurisdiction did not offend due process. New York has continued to adhere to Seider New Hampshire has followed Seider if the defendant resides in a Seider jurisdiction, but not in other cases. Minnesota is the only other State that has adopted Sender-type jurisdiction. The Second Circuit recently reaffirmed its conclusion that Seider does not violate due process after reconsidering the doctrine in light of Shaffer v. Heitner. O’Conner v. Lee-Hy Paving Corp., 579 F. 2d 194, cert. denied, 439 U. S. 1034 (1978). Ill In Shaffer v. Heitner we held that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” 433 U. S., at 212. That is, a„State may exercise jurisdiction over an absent defendant only if the defendant has “certain minimum contacts with [the forum]' such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945). In determining whether a particular exercise of state-court jurisdiction is consistent with due process, the inquiry must focus on “the relationship among the defendant, the forum, and the litigation.” Shaffer v. Heitner, supra, at 204. It is conceded that Rush has never had any" }, { "docid": "22630121", "title": "", "text": "other State that has adopted Sender-type jurisdiction. The Second Circuit recently reaffirmed its conclusion that Seider does not violate due process after reconsidering the doctrine in light of Shaffer v. Heitner. O’Conner v. Lee-Hy Paving Corp., 579 F. 2d 194, cert. denied, 439 U. S. 1034 (1978). Ill In Shaffer v. Heitner we held that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” 433 U. S., at 212. That is, a„State may exercise jurisdiction over an absent defendant only if the defendant has “certain minimum contacts with [the forum]' such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945). In determining whether a particular exercise of state-court jurisdiction is consistent with due process, the inquiry must focus on “the relationship among the defendant, the forum, and the litigation.” Shaffer v. Heitner, supra, at 204. It is conceded that Rush has never had any contacts with Minnesota, and that the auto accident that is the subject of this action occurred in Indiana and also had no connection to Minnesota. The only affiliating circumstance offered to show a relationship among Rush, Minnesota, and this lawsuit is that Rush’s insurance company does business in the State. Beider constructed an ingenious jurisdictional theory to permit a State to command a defendant to appear in its courts on the basis of this factor alone. State Farm’s contractual obligation to defend and indemnify Rush in connection with liability claims is treated as a debt owed by State Farm to Rush. The legal fiction that assigns a situs to a debt, for garnishment purposes, wherever the debtor is found is combined with the legal fiction that a corporation is “present,” for jurisdictional°purposes, wherever it does business to yield the conclusion that the obligation to defend and indemnify is located in the forum for purposes of the garnishment statute. The fictional presence of the policy obligation is deemed to give the State the power to determine" }, { "docid": "23008761", "title": "", "text": "the attachment procedure sanctioned by the New York Court of Appeals in Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966). In that case the plaintiff, a New York resident, was involved in an automobile accident in Vermont with a resident of Canada. The court held that the plaintiff could obtain quasi-in-rem jurisdiction in New York by attaching an automobile insurance liability policy issued in Canada by an insurance company which was doing business, and hence minimally present, in New York. The court reasoned that the obligation of the insurer to defend and indemnify was a debt which could be attached wherever the debtor could be found. It reconsidered the problem in light of a constitutional objection in Simpson v. Loehmann, 21 N.Y.2d 305, 310-11, 287 N.Y.S.2d 633, 636-37, 234 N.E.2d 669, 671 (1967), and relying on Harris v. Balk held the procedure to be constitutional. In Minichiello v. Rosenberg, 410 F.2d 106 (2d Cir. 1968), aff’d on rehearing en banc, 410 F.2d 117, cert. denied, 396 U.S. 844, 90 S.Ct. 69, 24 L.Ed.2d 94 (1969), the Seider v. Roth quasi-in-rem procedure came before the Second Circuit. Judge Friendly noted that the Seider decision had judicially created a direct action statute. Analyzing the interests and contacts involved, he concluded that the Supreme Court probably would uphold such a statute enacted for the benefit of New York residents, or for the benefit of non-residents injured in New York. 410 F.2d at 110. On rehearing en banc, Judge Friendly dealt directly with the due process issue arising from the exercise of quasi-in-rem jurisdiction. He concluded that the exercise of such jurisdiction was justified by Harris v. Balk. Three judges dissented, distinguishing Harris v. Balk, and urging that there were insufficient New York contacts to sustain jurisdiction. See 410 F.2d at 113-17 (Anderson, J., dissenting from the panel decision), and 410 F.2d at 120-22 (Anderson, Lumbard and Moore, JJ., dissenting from the en banc decision). The majority opinions in Minichiello, however, rest at least in part on the fact that the Seider procedure is available only for New York" }, { "docid": "23345515", "title": "", "text": "instances provide the most convenient forum for the trial of these cases. But modern transportation and business methods have made it moire difficult to serve process on wrongdoers who live or do business in other states.” 348 U.S. at 72, 75 S.Ct. at 170. The legislatures which have enacted long-arm statutes and courts which have interpreted them have been motivated and restrained by considerations of fairness and reasonableness. In deciding the due process issue, as it relates to the Seider procedure, “traditional notions of fair play and substantial justice,” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), must be used to determine whether or not it falls within permissible bounds. Weighed in this light, it seems to me that only the long-arm statutes asserting jurisdiction of the state where the accident occurred qualify as due process, whereas the assertion of jurisdiction by the state of the plaintiff’s residence does not. The Seider procedure potentially subjects to liability to out-of-state process, a defendant whose activities, as noted above, may have been entirely local. It, therefore, may come as something of a shock to such a defendant, untutored in New York law, to discover that he is exposed to the traditionally high verdicts returned by New York juries. In Watson, on the other hand, the defendant was engaged in activity across state lines, and it was foreseeable to him that he should insure himself against potential liability in Louisiana. True, recovery in New York could not exceed the insurance proceeds, but if the actual verdict or judgment were in excess of the policy limits, would the defendant be equitably estopped from asserting that the damages were less than those found by the New York court, where the plaintiff sued on the judgment in a court outside of the State of New York? In terms of fairness to the plaintiff, Seider involves by definition a plaintiff who is able to foresee that he may be injured in a foreign jurisdiction and compelled to litigate there. In Watson, however, the plaintiff’s activity was local, and" }, { "docid": "9766272", "title": "", "text": "is also admitted that these companies are the insurers of the appellees, Jahangiri. The firm of Gotsch, Steinmetz and Winston has been the New York agent for Farmers since 1951 and countersigns several of its documents a month, most of which are used to permit various trucking concerns to operate within New York state. This agent has no authority to write insurance for Farmers, but in 1969, the only year in which figures are given, Farmers did issue approximately $15,000 worth of workmen’s compensation, $100 worth of automobile personal injury, and $60 worth of property damage insurance in New York. The basic procedure for the attachment of insurance policies established by Seider, supra, has been reaffirmed by the New York Court of Appeals in Simpson v. Loehmann, 21 N.Y.2d 305, 287 N.Y.S.2d 633, 234 N.E.2d 669 (1967), reargument denied, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319 (1968), and accepted by the majority of this court, sitting en banc, Minichiello v. Rosenberg, 410 F.2d 106 (2 Cir.), cert, denied, 396 U.S. 844, 90 S.Ct. 69, 24 L.Ed. 2d 94 (1969). The present case, however, is indicative of the multitude of problems that have arisen from the Seider doctrine; and we reiterate the hope that Judge Friendly expressed in Minichiello, supra, 410 F.2d at 119, that either the New York courts or its legislature would give further consideration to the Seider procedure and the complexities it has created. Under the Seider holding the obligation of an insurer to indemnify its insured is a debt capable of being attached under NYCPLR §§ 5201, 6202. Therefore, if jurisdiction is acquired over the insurer, see Morris Plan Industrial Bank v. Gunning, 295 N.Y. 324, 330, 67 N.E.2d 510 (1946), there is quasi in rem jurisdiction over out-of-state residents. Because the claim here did not arise out of acts done in New York, its long-arm statute, NYCPLR § 302, does not apply and consequently jurisdiction must be founded on NYCPLR § 301, which provides: “A court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore [before 1963].” This" }, { "docid": "1249640", "title": "", "text": "not offend ‘traditional notions of fair play and substantial justice.’ ” “It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. . . . Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. “But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.” The due process “fundamental fairness” test of International Shoe substantially altered the focus of those considerations which were deemed relevant to the constitutional exercise of personal jurisdiction over non-residents. The tests that had emerged from the earlier fictional doctrines had in essence been quantitative. See Shaffer, 433 U.S. at 201, 97 S.Ct. at 2579; also Note, State Court Jurisdiction, at 923. International Shoe rendered the test a qualitative analysis of several circumstances of each particular ease. The relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the states on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction. Shaffer, 433 U.S. at 203, 97 S.Ct. at 2580, quoted International Shoe, 326 U.S. at 317, 66 S.Ct. at 154, as follows: “The inquiry into the State’s jurisdiction over a foreign corporation appropriately focused not on whether" }, { "docid": "1277113", "title": "", "text": "For jurisdictional purposes, in assessing fairness under the due process clause and in determining the public policy of New York, such factors loom large. “The position taken by some who disagree with Seider would require that, as a matter of State policy, insurance be explicitly eliminated as the basis for the exercise of our in rem jurisdiction but this represents a judgment requiring data and information with respect to the practical effect of the Seider decision not presently available to this court.” The language adumbrates Shaffer; it rests, as does Shaffer, on International Shoe. Judge Keating, concurring in the result, observed that the insurer in such a policy, must defend in any state in which the insured is involved in an accident, including direct action states — such as Louisiana. After speaking of the interest of direct action states in the lot of its residents injured in accidents occurring in the direct action state, Judge Keating continued “Similar State interests, it seems to me, would sustain a direct action against the insurer in this jurisdiction if the Legislature had authorized such actions, even though the action could not have been brought directly in the State in which the accident took place. Although no direct action statute is presently in effect, I see no policy reason for not holding that service of process on the real party defendant — the insurer — is sufficient to compel it to defend in this State, provided it transacts business here and is thus subject to the jurisdiction of our courts. “This court has on a number of occasions given effect to the strong State interest in facilitating recovery of persons injured in automobile accidents. The fact that the injury occurs outside of this State does not, of course, lessen that interest. (Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279; Macey v. Rozbicki, 18 N.Y.2d 289, 292,274 N.Y.S.2d 591, 221 N.E.2d 380 [concurring opn.].) “Likewise, we have on a number of occasions recognized that the real party in interest is the insurer and we have given effect to the fiction sought" }, { "docid": "23345497", "title": "", "text": "defended on the merits, he would subject himself to in personam jurisdiction with consequent personal liability for any judgment in excess of the policy limits. On the other hand, if the insured did not defend and judgment was entered by default, the insurer should be able to resist a levy on the basis of the insured’s non-corporation. In cases where the plaintiff’s claim exceeded the policy limits, Seider thus produced either a constitutionally unacceptable result or a nullity. These difficulties were largely swept away by what has been termed “a miraculous per curiam opinion,” see Commentary on CPLR § 5201, at 15 (McKinney Supp. 1968), denying reargument in Simpson v. Loehmann, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319 (1968). The Court of Appeals began by criticizing the argument just summarized, which had not been earlier advanced before it, as failing to take account of its statement, 21 N.Y.2d at 310, 287 N.Y.S. 2d at 636, 234 N.E.2d at 671, that the Seider doctrine did not “expand the basis for in persona jurisdiction in view of the fact that the recovery is necessarily limited to the value of the asset attached, that is, the liability insurance policy.” The “miracle” lay in the next sentences: “This, it is hardly necessary to add, means that there may not be any recovery against the defendant in this sort of case in an amount greater than the face value of such insurance policy even though he proceeds with the defense on the merits. Consideration of CPLR 320 (subd. [c]) and its effect in other • types of action begun by attachment must, of course, await future cases.” (Emphasis supplied.) Appellants respond that while this unexpected construction of CPLR § 320(c) protects the defendant in the New York Seider action, it does not fully meet the problem where as here the demands exceed the policy limits. Their fear is that if the plaintiff sues later for the unmet balance in a state where he has acquired jurisdiction in personam, a plaintiff’s judgment in the New York Seider action will be taken to have adjudicated" } ]

[ { "docid": "22380132", "title": "", "text": "of the matter asserted, and thus do not come within the traditional definition of hearsay, even without the special exemption of Federal Rule of Evidence 801(d)(2)(E). Thus, some of the out-of-court statements in this case presumably could be admitted without implicating the Confrontation Clause. For example, in one of the recorded phone conversations Levan and Lazaro discuss the missing tray with Lazaro suggesting that “Mike” took it and speculating about who set Lazaro up for the May 25 stop. 748 F. 2d, at 815. Certainly these statements were not introduced in order to prove the truth of the matters asserted, but as background for the conspiracy, or to explain the significance of certain events. We explained just last Term that admission of non-hearsay “raises no Confrontation Clause concerns.” Tennessee v. Street, 471 U. S. 409, 414 (1985). Cross-examination regarding such statements would contribute nothing to Confrontation Clause interests. Federal Rule of Evidence 801 characterizes out-of-court statements by co-conspirators as exemptions from, rather than exceptions to, the hearsay rule. Whether such statements are termed exemptions or exceptions, the same Confrontation Clause principles apply. The court in Ordonez found a Confrontation Clause violation because the Government, after introducing drug ledgers containing entries made by unidentified co-conspirators, did not adequately demonstrate that it was totally unable to identify those conspirators. Justice Marshall, with whom Justice Brennan joins, dissenting. With respect to the case before us, the majority takes but a small step. In Ohio v. Roberts, 448 U. S. 56 (1980), the Court held: “[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.’” Id., at 66 (quoting Dutton v. Evans, 400 U. S. 74, 89 (1970) (plurality opinion)). The majority now assures us that “[t]he reliability of the out-of-court statements is not at issue in this case.” Ante, at 391, n. 3. Respondent is thus free to return to the Court of Appeals and argue that the co-conspirator declarations admitted against him lack the “in-dicia of" } ]

[ { "docid": "22196370", "title": "", "text": "and held that these records were made in furtherance of the conspiracy. See, e.g., United States v. Shursen, 649 F.2d 1250, 1256 (8th Cir.1981) (Shursen). In Shursen, we held that ledgers containing cryptic notes of wagering transactions relating to a gambling operation were made in furtherance of the conspiracy because such records were necessary to a gambling operation. Id. at 1256. We hold that the district court’s conclusion was not clearly erroneous. Thomas also argues that some of the notes referring to disbursements of moneys have legitimate explanations, i.e., that the notes indicated repayments on loans and therefore were inadmissible because they were not made during the course and in furtherance of the charged conspiracy. However, after careful examination of the voluminous record before this court, we hold that the district court’s finding that these notes were made during the course and in furtherance of a conspiracy to which Thomas belonged is not clearly erroneous. Confrontation Rights Appellants argue that even if properly admitted as co-conspirators’ statements pursuant to Fed.R.Evid. 801(d)(2)(E), the admission of notes seized from the homes of DeLuna and Tamburello and certain tape recordings violated their rights under the confrontation clause of the sixth amendment. The circuits are divided as to whether a co-conspirator statement that is admissible under Fed.R.Evid. 801(d)(2)(E) necessarily satisfies the requirements imposed by the confrontation clause. This circuit, following the Supreme' Court decision in Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980), has held that even if a co-conspirator statement is admissible under Fed.R. Evid. 801(d)(2)(E), in order to satisfy the requirements of the confrontation clause, the government must demonstrate that the declarant is unavailable and that the statement bears sufficient indicia of reliability. See United States v. Massa, 740 F.2d 629, 638-39 (8th Cir.1984). Accord United States v. Ammar, 714 F.2d 238, 254-57 (3d Cir.), cert. denied, — U.S.-, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983); United States v. Perez, 658 F.2d 654, 660-61 & n. 5 (9th Cir.1981); United States v. Wright, 588 F.2d 31, 37-38 (2d Cir.1978), cert. denied, 440 U.S. 917, 99" }, { "docid": "23033069", "title": "", "text": "use of hearsay declarations at trial protect similar values, but the conclusion that a statement is admissible under one of the exceptions to the hearsay rule does not eliminate the need to evaluate whether admission of the statement contravenes the defendant’s right of confrontation. See Mattes v. Gagnon, 700 F.2d 1096, 1101 (7th Cir.1983); United States v. Perez, 658 F.2d 654, 660 (9th Cir.1981). Without attempting to set forth a definitive test for evaluating hearsay testimony under the confrontation clause, the Supreme Court identified the general limitations on the use of hearsay in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). First, the Sixth Amendment establishes a “rule of necessity,” so 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.” Id. at 65, 100 S.Ct. at 2538 (citations omitted). Second, once a witness is shown to be unavailable, it must also be demonstrated that the hearsay is trustworthy; it must bear sufficient “indicia of reliability.” Id. at 65-66, 100 S.Ct. at 2538-2539. The rule of necessity is not absolute, however. The government need not produce the hearsay declarant or demonstrate his unavailability where “the utility of trial confrontation is remote.” Id. at 65, n. 7, 100 S.Ct. at 2538, n. 7. Moreover (under the “Dutton exception”), at least where the evidence is neither “crucial” to the presentation, nor “devastating” to the defendant, the evidence may be admissible even though the necessity requirement is not met. See Dutton v. Evans, 400 U.S. 74, 87-89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970); United States v. McClintock, 748 F.2d 1278, 1292 (9th Cir.1984). The district court relied largely on this “Dutton'exception” in concluding that the confrontation clause was not violated by the admission of evidence here. See United States v. Keplinger, 572 F.Supp. 1068, 1071 (N.D.Ill. 1983). Defendants complain that admission of two exhibits violated their rights to confrontation. The first exhibit, II-E-19, is the so-called “Kennedy memo.” This is a memorandum by Gerald Kennedy from which it arguably can" }, { "docid": "5469710", "title": "", "text": "and not a conspirator is not relevant to the admissibility of conspirators’ statements to him. Smith, 623 F.2d at 631. Laviola’s statements on the tapes were not admitted as evidence. Laviola testified at the trial. Tille contends that the Burrows tape violated his Sixth Amendment right to con front Burrows who did not testify at trial. Satisfaction of the requirements for admission as a coconspirator statement does not eliminate confrontation clause questions. United States v. Arbelaez, 719 F.2d 1453, 1459 (9th Cir.1983); United States v. Fleishman, 684 F.2d 1329, 1339 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982); United States v. Perez, 658 F.2d 654, 660 & n. 5 (9th Cir.1981). Contra, United States v. Bernal, 719 F.2d 1475, 1479 (9th Cir.1983) (in conflict with all Ninth Circuit cases, including one decided the same day; cites no Ninth Circuit authority). We apply a two part test to confrontation clause issues: unavailability of the declarant and reliability suggested by the circumstances of the statement. Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980); Perez, 658 F.2d at 660-61. Codefendants who do not testify are considered unavailable declarants. Arbelaez, 719 F.2d at 1460. The reliability inquiry is whether unavailability for cross-examination deprives the jury of a satisfactory basis for evaluating the truth of the statements offered. Fleishman, 684 F.2d at 1339. The factors considered include (1) whether the statements are assertions of past fact, (2) whether the declarant had personal knowledge concerning the crime, (3) the possibility of faulty recollection, and (4) whether the circumstances suggest that the declarant misrepresented the defendant’s role. Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 219-20, 27 L.Ed.2d 213 (1970); United States v. Foster, 711 F.2d 871, 881 (9th Cir.1983). All four indicators need not be present, Fleishman, 684 F.2d at 1339, but all four weigh in favor of admissibility here. B. 1976 Statements Appellants challenge testimony concerning Satiacum’s desire and attempt to have Bennett killed in 1976. Turnipseed testified that in 1976 Satiacum offered $5,000 to have Bennett killed. In June" }, { "docid": "11684402", "title": "", "text": "the fears of a co-conspirator are in furtherance of a conspiracy.” Id. While appellants contend that Daniels’s statement was not intended to reassure Gousheh or to induce his continued participation in the conspiracy, it falls squarely within the “keep a conspirator abreast of a co-conspirator’s activities” language in Layton, and thus is admissible under Rule 801(d)(2)(E). Keeping Gousheh abreast of the coconspirator’s activities was in furtherance of the conspiracy because the record reveals that Gousheh had a continuing role in the conspiracy — the exchange and the counting of the money. This raises the question of whether, by meeting the requirements ' of Rule 801(d)(2)(E), Daniels’s statement also sur vives a challenge under the Sixth Amendment’s Confrontation Clause. In Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), the Supreme Court held, “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.’ ” However, in United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 1129, 89 L.Ed.2d 890 (1986), the Court held that the Confrontation Clause does not require a showing of unavailability as a condition to the admission of the out-of-court statements of a coconspirator. The Court did not address the question of whether the coconspirators exemption of Rule 801(d)(2)(E) satisfies the reliability requirement. Id. at 1124 n. 3, 1129 n. 1 (Marshall, J., dissenting). Here, appellants argue that Gousheh’s testimony should not have been admitted because it was not reliable. The Government argues, first, that reliability may be inferred when a statement is admissible under Rule 801(d)(2)(E); and, second, that even if reliability must be shown, Gousheh’s testimony meets the criteria for admission of a coconspirator’s statement set forth in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). With regard to its first argument, the Government asserts that the Court’s statement in Roberts that “[reliability can be inferred without more in a case where the evidence falls within a firmly" }, { "docid": "1155676", "title": "", "text": "arguments betray a fundamental misunderstanding both of the Supreme Court’s Inadi decision and the elements to be considered in a determination of reliability. Inadi held that there is no requirement that the government produce the declarants or demonstrate that they were unavailable when coconspirator statements are introduced under FRE 801(d)(2)(E). The Court’s reasoning was not founded on the facts of Inadi, but on the nature of coconspirator evidence and the historical development of the rule allowing its admission. Coconspirator statements differ from the types of out-of-court statements where Roberts requires a showing of unavailability in that they are not a substitute for live testimony but “provide evidence of the conspiracy’s context that cannot be replicated, even if the declarant testifies to the same matters in court.” Inadi, 106 S.Ct. at 1126. For this reason, the Court held that “the unavailability rule, developed for cases involving former testimony, is not applicable to coconspirators’ out-of-court statements.” Id. Thus, any attempt to resurrect an availability requirement because the tapes in this case are less reliable than those in Inadi is foreclosed: there is no longer any such constitutional requirement in the FRE 801(d)(2)(E) context. We derived the availability requirement in our holding in Inadi from Ohio v. Roberts, 448 U.S. 56,100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Roberts concerned admissions of prior testimony, not coconspirator statements, and held that “[t]he Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay.” 448 U.S. at 65, 100 S.Ct. at 2538. The first, under the circumstances operative in that case, is an availability requirement, and the second is that the statements must bear sufficient “indicia of reliability.” 448 U.S. at 65-66, 100 S.Ct. at 2538-39. We have often held that coconspirator statements “must bear sufficient ‘indicia of reliability’ to demonstrate their trustworthiness,” United States v. Ammar, 714 F.2d 238, 253 (3d Cir.1983), cert. denied, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1982), although all circuits are not in agreement on this point. See Inadi, 106 S.Ct. at 1129, n. 1 (Marshall, J., dissenting). The issue of reliability was not presented" }, { "docid": "1807193", "title": "", "text": "right to cross-examination, because hearsay statements may often be admitted despite the unavailability of the declarant.” Miller v. Keating, 754 F.2d 507, 510 (3rd Cir.1985). D. Confrontation and Due Process Objections Paris next contends that the admission of DePalm’s statements violates both the Sixth Amendment Confrontation Clause and the Due Process Clause of the Fifth Amendment. 1. The Confrontation Clause This circuit formerly required two additional conditions to be satisfied before co-conspirator statements, admissible under Rule 801(d)(2)(E), could also be deemed admissible under the Confrontation Clause. First, the government had either to produce the co-conspirator or to show that he was unavailable. Second, the statements had to satisfy an independent test of reliability. See, e.g., United States v. Fleishman, 684 F.2d 1329, 1338-39 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). In two recent cases, however, the Supreme Court has eliminated both these additional requirements. See Bourjaily v. United States, — U.S. -, -, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987) (reliability); United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 1126, 89 L.Ed.2d 390 (1986) (unavailability). The effect of these two cases is to render the Sixth Amendment requirements for admitting co-conspirator statements “identical” to those of Rule 801(d)(2)(E). See Bourjaily, — U.S. -, 107 S.Ct. at 2783. The Confrontation Clause is therefore of no assistance to Paris. 2. Due Process Paris correctly cites United States v. Alessio, 528 F.2d 1079, 1082 (9th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976), for the proposition that we will reverse a conviction on due process grounds if the “appellant was denied a fair trial because of the government’s refusal to seek immunity for defense witnesses.” There is no evidence beyond an ambiguous offer of proof made by Paris’s attorney that DePalm would have retracted his statements that implicated Paris and would have testified that Paris was “set up.” Nor does the evidence support the proposition that the government intentionally caused DePalm to invoke his Fifth Amendment privilege. Finally, Paris never asked the prosecutor to grant DePalm immunity. See" }, { "docid": "10887613", "title": "", "text": "the negotiations concerning the size of Atala’s debt and the terms of the cocaine transaction. Specifically, the defendants object to Castaneda’s statement that he and Espinosa were “partners with Mejia in this particular transaction,” to his statements about the amounts of money and jewels which had been given to Atala, and to his statement that he had sold 1600 kilos of cocaine in Miami over the last year. The defendants claim that, because none of the statements furthered the conspiracy, the statements were improperly admitted under Rule 801(d)(2)(E). They also claim that admission of the statements violated their rights under the confrontation clause. Admission of Castaneda’s first statement did not violate Rule 801(d)(2)(E). The statement that Espinosa and Castaneda were Mejia’s partners furthered the conspiracy because it assured the DEA agents and Atala that Espinosa and Castaneda had authority to resolve Atala’s debt. Nor did admission violate the confrontation clause. “ ‘[Confrontation clause analysis should proceed case-by-case under a two-track approach that tests the necessity and reliability of the contested testimony,’ ” United States v. Layton, 720 F.2d 548, 561 (9th Cir.1983) (quoting United States v. Perez, 658 F.2d 654, 660 (9th Cir.1981)); accord Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-2539, 65 L.Ed.2d 597 (1980). Use of Castaneda’s first statement was necessary because Castaneda’s status as a codefendant made him unavailable to the prosecution. United States v. Arbe-laez, 719 F.2d 1453, 1460 (9th Cir.1983). The statement met the indicia of reliability set forth in Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 219-220, 27 L.Ed.2d 213 (1970): the statement was not an assertion of past fact; Castaneda had personal knowledge of Espinosa and Mejia and did not rely upon recollection of past circumstances; and the statement was against Castaneda’s penal interests. Admission of Castaneda’s statement about the money and jewels given to Atala did not violate 801(d)(2)(E) because the statements furthered the conspiracy by enlarging the size of the debt which Atala had to repay. It is a much closer question whether admission of the statements violated the confrontation clause. The statements may have" }, { "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": "23551277", "title": "", "text": "probable than not that the error materially affected the verdict. United States v. Rasheed, 663 F.2d 843, 850 (9th Cir.1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982); United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir.1977). We are satisfied that the error was harmless. Almost every witness implicated Foster, and the evidence against him was overwhelming. Foster also contends that his Sixth Amendment confrontation right was violated by admission of Jackson’s statements. We disagree. Confrontation claims are reviewed under a two-track approach that tests the necessity and reliability of the challenged testimony. Ohio v. Roberts, 448 U.S. 56, 65-66,100 S.Ct. 2531, 2538-2539, 65 L.Ed.2d 597 (1980). Concerning the necessity requirement, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it intends to offer against the defendant. Id. at 65, 100 S.Ct. at 2538-2539. The Supreme Court has suggested, however, that compliance with this requirement might not be mandatory when the testimony is neither “crucial” to the prosecution nor “devastating” to the defendant. Dutton v. Evans, 400 U.S. 74, 87, 89, 91 S.Ct. 210, 219, 220, 27 L.Ed.2d 213 (1970). Although Foster contends that Jackson’s hearsay statements were both “crucial” and “devastating”, he concedes that Jackson was unavailable within the meaning of the Sixth Amendment. Accordingly, even if Jackson’s statement is viewed as “crucial” and “devastating,” the rule of necessity inherent in the confrontation clause can not be said to have violated in Foster’s case. The reliability of a coconspirator’s statements are tested under four indicia: (1) whether the declaration contained assertions of past fact; (2) whether the declarant had personal knowledge of the identity and role of the participants in the crime; (3) whether it was possible that the declar-ant was relying upon faulty recollection; and (4) whether the circumstances under which the statements were made provided reason to believe that the declarant had misrepresented the defendant’s involvement in the crime. Dutton v. Evans, 400 U.S. at 88-89, 91 S.Ct. at 219-220; United States v. Perez, 658 F.2d at 661. Foster challenges the admissibility of Jackson’s hearsay statements only" }, { "docid": "1807216", "title": "", "text": "the injustice to Paris. Now, the prosecutor is not merely given the privilege of keeping witnesses out based upon his own guess as to whether they will tell the truth, he is allowed to create evidence in response to the appellate court’s decision and have the court rely on it as fact. . It is worth noting that none of the prints found on the briefcase or the bag of cocaine inside belonged to Paris. . This information was not known at the time of trial. It therefore could not have been used to impeach Hafley’s statements. It does show, however, that DePalm’s testimony might well have contradicted Hafley’s. well tip in favor of letting the government present its case. But here there was no such impossibility. DePalm was available to testify but refused to do so merely because he feared self-incrimination, a fear that immunity could have removed. . In Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980), the Court noted that \"the Sixth Amendment establishes a rule of necessity. 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.” Recently, however, the Court limited this rule to hearsay consisting of prior testimony. United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 1125, 89 L.Ed.2d 390 (1986). The Supreme Court has specifically rejected the requirements that the government prove the unavailability and reliability of the declarant before co-conspirator statements are admitted. Id. 106 S.Ct. at 1129 (unavailability); Bourjaily v. United States, — U.S. -, -, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987) (reliability). Nevertheless, I do not read these decisions as holding that co- conspirator’s statements are automatically admissible. Moreover, they certainly did not eliminate a court’s responsibility under the Fifth Amendment to evaluate the overall fairness of a criminal proceeding. In this case, I cannot conclude that “the trier of fact could satisfactorily evaluate the truth of the hearsay statement\" without DePalm’s in-court testimony. United States v. Eaglin, 571 F.2d 1069, 1084 (9th" }, { "docid": "1807192", "title": "", "text": "the conspiracy to reveal the source’s identity to a customer. This argument is misguided. DePalm made each of his statements to ensure Hafley's continued interest in purchasing cocaine from DePalm’s source. The statements furthered the conspirators’ common objective: the sale of cocaine. See United States v. Eaglin, 571 F.2d 1069, 1083 (9th Cir.1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1453, 55 L.Ed.2d 497 (1978) (statements made to keep a person abreast of the conspirators’ activities, to induce continued participation in the conspiracy, or to allay fears are made in furtherance of the conspiracy). 2. Violation of Fed.R.Evid. 806 Paris next argues that under Rule 806, DePalm’s statements were inadmissible because Paris had no opportunity to cross-examine DePalm. Rule 806 provides, in part, that when a statement has been admitted into evidence under Rule 801(d)(2)(E), the defendant may question the declarant on direct examination as if on cross-examination. However, Rule 806 applies by its own terms only if the defendant is otherwise able to call the declarant as a witness. “The rule confers no absolute right to cross-examination, because hearsay statements may often be admitted despite the unavailability of the declarant.” Miller v. Keating, 754 F.2d 507, 510 (3rd Cir.1985). D. Confrontation and Due Process Objections Paris next contends that the admission of DePalm’s statements violates both the Sixth Amendment Confrontation Clause and the Due Process Clause of the Fifth Amendment. 1. The Confrontation Clause This circuit formerly required two additional conditions to be satisfied before co-conspirator statements, admissible under Rule 801(d)(2)(E), could also be deemed admissible under the Confrontation Clause. First, the government had either to produce the co-conspirator or to show that he was unavailable. Second, the statements had to satisfy an independent test of reliability. See, e.g., United States v. Fleishman, 684 F.2d 1329, 1338-39 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). In two recent cases, however, the Supreme Court has eliminated both these additional requirements. See Bourjaily v. United States, — U.S. -, -, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987) (reliability); United States v. Inadi, 475 U.S." }, { "docid": "22196371", "title": "", "text": "seized from the homes of DeLuna and Tamburello and certain tape recordings violated their rights under the confrontation clause of the sixth amendment. The circuits are divided as to whether a co-conspirator statement that is admissible under Fed.R.Evid. 801(d)(2)(E) necessarily satisfies the requirements imposed by the confrontation clause. This circuit, following the Supreme' Court decision in Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980), has held that even if a co-conspirator statement is admissible under Fed.R. Evid. 801(d)(2)(E), in order to satisfy the requirements of the confrontation clause, the government must demonstrate that the declarant is unavailable and that the statement bears sufficient indicia of reliability. See United States v. Massa, 740 F.2d 629, 638-39 (8th Cir.1984). Accord United States v. Ammar, 714 F.2d 238, 254-57 (3d Cir.), cert. denied, — U.S.-, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983); United States v. Perez, 658 F.2d 654, 660-61 & n. 5 (9th Cir.1981); United States v. Wright, 588 F.2d 31, 37-38 (2d Cir.1978), cert. denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 467 (1979). Several circuits have adopted “a per se rule permitting the use of properly admissible extrajudicial statements of a co-conspirator who does not take the stand at trial without risk of reversal for violation of his co-defendants’ rights to confrontation.” United States v. Papia, 560 F.2d 827, 836 n. 3 (7th Cir.1977); accord United States v. Lurz, 666 F.2d 69, 80-81 (4th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982); United States v. McManus, 560 F.2d 747, 750 (6th Cir.1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 894, 54 L.Ed.2d 798 (1978); Ottomano v. United States, 468 F.2d 269, 273 (1st Cir.1972), cert. denied, 409 U.S. 1128, 93 S.Ct. 948, 35 L.Ed.2d 260 (1973). The declarants who were also co-defendants in the present ease are considered “unavailable” for the purposes of the confrontation clause because they exercised their fifth amendment right and chose not to testify at their trial. We only need to consider, therefore, the “indicia of reliability” of the statements made by the" }, { "docid": "14668844", "title": "", "text": "the judgment of the court reversing the grant of the writ of habeas corpus. I write separately to set forth my views on the appropriate method of analysis in determining whether the admission of T’s statements to Dr. McLean conformed to the requirements of the Confrontation Clause. In particular, I do not agree with the majority's assertion that \"T's unavailability was not a constitutional sine qua non of allowing her out of court statements to be used in evidence against her father.” Rather, I believe that the Confrontation Clause required the prosecution to show that T was not available to testify at trial and that the statements themselves had particularized guarantees of trustworthiness. In my view, the prosecution has complied with both requirements. Consequently, I believe that the admission of T’s statements through Dr. McLean did not violate the defendant’s sixth amendment rights. I. In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court appeared to fix both the unavailability of the declarant and the reliability of the statement as enduring lodestars in Confrontation Clause cases. In Roberts, a case involving testimony given at a preliminary hearing, the Court stated that generally, “the prosecution must either produce, or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant.” Id. at 65, 100 S.Ct. at 2538. The Court, however, emphasized that a showing of unavailability is not required in all situations. Id. at 65 n. 7, 100 S.Ct. at 2538 n. 7. The general language contained in Roberts prompted many courts to conclude that a demonstration of the declarant’s unavailability was a constitutional pre-condition to the admission of most hearsay statements. See United States v. Caputo, 758 F.2d 944, 950 n. 2 (3rd Cir.1985) (collecting cases). The validity of this interpretation of Roberts, however, is suspect in view of United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986). The precise holding in Inadi was that no unavailability showing is required when statements are admitted pursuant to Federal Rule of Evidence 801(d)(2)(E) — co-conspirator statements" }, { "docid": "14259690", "title": "", "text": "of a conspiracy will not be disturbed unless the trial judge could not reasonably have come to that conclusion. United States v. Tille, 729 F.2d 615, 621 (9th Cir.1984). The trial court’s finding that the Isaza statements furthered the conspiracy was reasonable; therefore, admission of the statements did not violate Rule 801(d)(2)(E). The first statement assured Agent White of Isaza’s access to the necessary quantity of cocaine. The second seeks to induce Agent White’s participation in the transaction by assuring him of Isaza’s ability to consummate the transaction. Satisfaction of the requirements for admission as a coconspirator’s statement does not, however, eliminate confrontation clause questions. United States v. Tille, 729 F.2d at 621. A two-part analysis is applied to confrontation issues, testing necessity and reliability. Ohio v. Rob erts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980); United States v. Fleishman, 684 F.2d at 1330-31. The necessity requirement is satisfied by showing the declarant was unavailable. United States v. McKinney, 707 F.2d 381, 383 (9th Cir.1983). To determine reliability, we examine four factors: (1) whether the declaration contained assertions of past fact; (2) whether the declarant had personal knowledge of the identity and role of the participants in the crime; (3) whether the declarant may have been relying upon faulty recollection; and (4) whether the circumstances under which the statements were made provided reason to believe that declarant misrepresented the defendant’s involvement in the crime. Fleishman, 684 F.2d at 1339. Thus, hearsay which falls within the coconspirator exception and satisfies other indicia of reliability is considered reliable for confrontation clause purposes. It is a close question as to whether admission of the Isaza statements violated the confrontation clause. Although the necessity requirement was met by a showing that Isaza was a fugitive from justice, his statements may have lacked sufficient trustworthiness because he was recounting facts about which he had reason to exaggerate. Even assuming error in admission, we do not view the error as significant. In light of the other evidence of guilt, including the tape recordings and Echeverry’s own corroborating testimony, the error, if" }, { "docid": "22266749", "title": "", "text": "the Sixth Amendment, because the government did not show that Ruggiero was unavailable to testify. Five courts of appeals have held that the admission of out-of-court statements of a co-conspirator under Rule 801(d)(2)(E) of the Federal Rules of Evidence without a showing that he is unavailable does indeed violate the Confrontation Clause. But this court is not among them. We have steadfastly held that the Confrontation Clause does not require a showing of the co-conspirator’s unavailability before his out-of-court statements may be admitted under Rule 801(d)(2)(E). The courts that side with DiSalvo rely on Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. ■ 2531, 65 L.Ed.2d 597 (1980). In Roberts the Court said the following: The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. 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. 448 U.S. at 65, 100 S.Ct. at 2538 (emphasis added). Later the Court said: 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. Id. at 66, 100 S.Ct. at 2539 (emphasis added). We have emphasized the phrases “in the usual case” and “normally” because they show that the Court recognized that the rule admits of exceptions. Indeed, the one exception expressly noted by the Court, Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), see 448 U.S. at 65 n. 7, 100 S.Ct. at 2538 n. 7, involved the ad- • missibility of an out-of-court statement of a co-conspirator under a state rule of evidence. DiSalvo has not shown us why the out-of-court statements of co-conspirators that are admissible under Rule 801(d)(2)(E) should not generally be exceptions to the rule of Roberts. The right of confrontation, while fundamentally important, is not absolute. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973)." }, { "docid": "21728167", "title": "", "text": "had repeatedly rendered assistance to Quintiliano; he had at Quintiliano’s request found the Béechcraft plane for purchase and had introduced him to White, an experienced pilot. Quintiliano also may have felt that he would need Bilella’s help in the future. Under these circumstances, Quintiliano’s reports to White and Bilella did further the conspratorial scheme. This case is distinguishable from United States v. Provenzano, supra, where the co-conspirator’s statements were held not to be in furtherance of the conspiracy. Contrary to the circumstances of the instant case where all the statements were made to co-conspirators, in Provenzano, the statements were made to persons not part of the conspiracy who had no reason to know about the matters disclosed to them. We conclude that the Government satisfied its burden of laying the necessary foundation for admission of Quintiliano’s co-conspirator statements against Gibbs under Fed.R.Evid. 801(d)(2)(E). It remains for us to consider Gibbs’ contention that his constitutional rights under the sixth amendment Confrontation Clause were violated. III. The sixth amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Gibbs contends on appeal that the admission of out-of-court statements made by Quintiliano on October 4 and. 5, 1980, had the effect of denying Gibbs his constitutional right to confront and cross-examine his accuser. Gibbs argues that under the rule of Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980), which examined the bounds of the sixth amendment, the Government was required to prove that the declarant, Quintiliano, was unavailable, and that the co-conspirator evidence was reliable, before any such testimony could be admitted into evidence. We recognize that no exact equation exists between Fed.R.Evid. 801 and the Confrontation Clause, see Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970); Ammar, 714 F.2d at 254-55, thereby raising the possibility that evidence that satisfies Fed.R.Evid. 801(d)(2)(E) could still be deemed inadmissible under the constitutional test. Gibbs has argued that unavailability must be demonstrated and that the Government has the burden of" }, { "docid": "23672472", "title": "", "text": "objects generally to Mandel’s testimony concerning Nadir’s declarations about planning the robberies, obtaining and disposing of the gold, and collecting money from creditors of West Coast Metallics. Mandell was a coconspirator and his uncorroborated testimony was sufficient to establish the existence of the conspiracy. See United States v. Wolfson, 634 F.2d 1217, 1219 (9th Cir.1980). Mandel’s testimony as to appellants’ declarations at meetings in which they discussed the conspiracy, its objectives, and how it would proceed, did not violate the hearsay rule. Such testimony had dual aspects. The first was that it was not offered to prove the truth of the conspirators’ statements, but was evidence of verbal acts which brought the conspiracy into existence. See id. The second aspect was indeed offered to prove the truth of matters asserted. Nonetheless, Nadir’s statements are not hearsay, Fed.R.Evid. 801(d)(2)(E), because they were made during the course and in furtherance of the conspiracy, and were admissible against Lopez because he was a coconspirator. United States v. Brock, 667 F.2d 1311, 1315 (9th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1271, 75 L.Ed.2d 493 (1983). Lopez claims his right to confrontation was violated because he could not cross-examine Nadir regarding Mandel’s testimony. The Supreme Court has rejected the argument that the declarant must be unavailable as a prerequisite to the admission of coconspirator statements. United States v. Inadi, --- U.S. ---, 106 S.Ct. 1121, 1129, 89 L.Ed.2d 390 (1986). The presence or absence of indicia of reliability determines whether a statement may be placed before the jury even though the declarant is not in court. See Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980); Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970). The inquiry into reliability requires us to consider four factors: (1) Whether the statements are assertions of past fact, (2) whether the declarant had personal knowledge of the facts he related, (3) the possibility of faulty recollection, and (4) whether the circumstances suggest that the declarant misrepresented the defendant’s role. United States v. Monks, 774 F.2d" }, { "docid": "11684403", "title": "", "text": "However, in United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 1129, 89 L.Ed.2d 890 (1986), the Court held that the Confrontation Clause does not require a showing of unavailability as a condition to the admission of the out-of-court statements of a coconspirator. The Court did not address the question of whether the coconspirators exemption of Rule 801(d)(2)(E) satisfies the reliability requirement. Id. at 1124 n. 3, 1129 n. 1 (Marshall, J., dissenting). Here, appellants argue that Gousheh’s testimony should not have been admitted because it was not reliable. The Government argues, first, that reliability may be inferred when a statement is admissible under Rule 801(d)(2)(E); and, second, that even if reliability must be shown, Gousheh’s testimony meets the criteria for admission of a coconspirator’s statement set forth in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). With regard to its first argument, the Government asserts that the Court’s statement in Roberts that “[reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception” should apply here. 448 U.S. at 66, 100 S.Ct. at 2539. That is, once a coeonspirator’s statement has been shown to meet the requirements of Rule 801(d)(2)(E), a court need not consider the reliability question further. However, Roberts involved the prior testimony of an unavailable witness who had been called by defense counsel and examined at a preliminary hearing, not the statement of a coconspirator. Our circuit has held that satisfaction of Rule 801(d)(2)(E) does not automatically satisfy the indicia of reliability requirement. Thus, we continue to use the Dutton factors in determining whether the statements of a coconspirator should be admitted. See, e.g., Tille, 729 F.2d at 621; United States v. Fleishman, 684 F.2d 1329, 1339 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982); Perez, 658 F.2d at 660-61. The four factors to be considered under Dutton are: (1) whether the statements are assertions of past fact, (2) whether the declarant had personal knowledge concerning the crime, (3) the possibility of faulty recollection, and (4)" }, { "docid": "21728196", "title": "", "text": "majority that there may be sufficient evidence to permit a reasonable inference of Gibbs’s initial complicity in the enterprise, I strongly believe that the admission of the double hearsay statements constitutes serious and therefore reversible error because it deprived Gibbs of his sixth amendment right to confrontation. Because the independent evidence upon which the Government relied for introduction of the out-of-court statements was so tenuous, it was highly important that any out-of-court statements be unequivocal and that the declarant be subject to searching cross-examination. In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Supreme Court recognized that the confrontation clause and the hearsay rule “stem from the same roots,” but stated that “the Court has never equated the two, and we decline to do so....” Id. at 86, 91 S.Ct. at 218. The confrontation clause issue and the evidentiary question therefore must be separately analyzed, and the sixth amendment may require the exclusion of evidence even though admissible under Fed.R.Evid. 801(d)(2)(E). See United States v. Perez, 658 F.2d 654, 660 & n. 5 (9th Cir.1981). See also United States v. Palumbo, 639 F.2d 123, 131 (3d Cir.) (Adams, J., concurring), cert denied, 454-U.S. 819, 102 S.Ct. 100, 70 L.Ed.2d 90 (1981); United States v. Puco, 476 F.2d 1099, 1102 (2d Cir.), cert. denied, 414 U.S. 844, 94 S.Ct. 106, 38 L.Ed.2d 82 (1973). In Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980), the Supreme Court identified two restrictions that the confrontation clause places on the use of hearsay evidence in criminal trials. First, the prosecution generally must establish that the hearsay evidence is necessary because the declarant is unavailable. Second, the hearsay statement must be reliable. “Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendapt an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.’ ” Id. at 65, 100 S.Ct. at 2538 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107, 54" }, { "docid": "23672473", "title": "", "text": "1022, 103 S.Ct. 1271, 75 L.Ed.2d 493 (1983). Lopez claims his right to confrontation was violated because he could not cross-examine Nadir regarding Mandel’s testimony. The Supreme Court has rejected the argument that the declarant must be unavailable as a prerequisite to the admission of coconspirator statements. United States v. Inadi, --- U.S. ---, 106 S.Ct. 1121, 1129, 89 L.Ed.2d 390 (1986). The presence or absence of indicia of reliability determines whether a statement may be placed before the jury even though the declarant is not in court. See Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980); Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970). The inquiry into reliability requires us to consider four factors: (1) Whether the statements are assertions of past fact, (2) whether the declarant had personal knowledge of the facts he related, (3) the possibility of faulty recollection, and (4) whether the circumstances suggest that the declarant misrepresented the defendant’s role. United States v. Monks, 774 F.2d 945, 952 (9th Cir.1985) (citing Dutton, 400 U.S. at 88-89, 91 S.Ct. at 219-20). Nadir’s statements possess sufficient indicia of reliability to satisfy these requirements. Thus, the admission of Mandel’s testimony regarding Nadir’s statements did not violate the confrontation clause. V. Extortion Convictions Appellants were convicted of two counts of collecting extensions of credit by extortionate means in violation of 18 U.S.C. § 894. They challenge their convictions on the grounds that (1) the debts owed to West Coast Metallics were not extensions of credit, and (2) the statute does not apply to the collection of legitimate debts. The Maratón and Parisienne extortions charged in Counts 9 and 10 followed defaulted payments on bad checks. Appellants rely on United States v. Boulahanis, 677 F.2d 586 (7th Cir.), cert. denied, 459 U.S. 1016, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982), as authority for the proposition that defaulted payments do not qualify as extensions of credit for purposes of section 894. Other circuits have declined to follow such a narrow definition of extension of credit. See United" } ]

[ { "docid": "22681722", "title": "", "text": "States, as amicus curiae, posits another example along these lines, involving “a debtor who fraudulently represents to aircraft manufacturers that his steel bolts are aircraft quality [and] obtains sales of $5,000” for the bolts, but “the fraud causes a multi-million dollar airplane to crash.” Brief for United States as Amicus Curiae 21. As petitioner acknowledges, his gloss on § 523(a)(2)(A) would allow the debtor in those situations to discharge any liability for losses caused by his fraud in excess of the amount he initially received, leaving the creditor far short of being made whole. And the portion of a creditor’s recovery that exceeds the value of the money, property, etc., fraudulently obtained by the debtor — and that hence would be dis-chargeable under petitioner’s view — might include compensation not only for losses brought about by fraud but also for attorney’s fees and costs of suit associated with establishing fraud. But see § 523(d) (allowing award of attorney’s fees and costs to the debtor where a creditor requests discharge-ability determination under § 523(a)(2) for a consumer debt that is ultimately found to be dischargeable). Those sorts of results would not square with the intent of the fraud exception. As we have observed previously in addressing different issues surrounding the scope of that exception, it is “unlikely that Congress ... would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud.” Grogan, supra, at 287. In short, the text of § 523(a)(2)(A), the meaning of parallel provisions in the statute, the historical pedigree of the fraud exception, and the general policy underlying the exceptions to discharge all support our conclusion that “any debt... for money, property, services, or . . . credit, to the extent obtained by” fraud encompasses any liability arising from money, property, etc., that is fraudulently obtained, including treble damages, attorney’s fees, and other relief that may exceed the value obtained by the debtor. Under New Jersey law, the debt for fraudulently obtaining $31,382.50 in rent payments includes treble damages and attorney’s fees and costs, and consequently, petitioner’s" } ]

[ { "docid": "22551388", "title": "", "text": "services, or ... credit, to the extent [that the money, property, services, or ... credit is] obtained by” fraud. The phrase thereby makes clear that the share of money, property, etc., that is obtained by fraud gives rise to a nondischargeable debt. Once it is established that specific money or property has been obtained by fraud, however, “any debt” arising therefrom is excepted from discharge. In this case, petitioner received rent payments from respondents for a number of years, of which $31,382.50 was obtained by fraud. His full liability traceable to that sum — $94,147.50 plus attorney’s fees and costs — thus falls within the exception. . Petitioner does not dispute that the term “debt” encompasses treble damages or that the phrase “to the extent obtained by” modifies “money, property, services, or ... credit.” He nonetheless contends that “any debt ... for money, property, services, or ... credit, to the extent obtained by” fraud does not include treble damages awarded in a fraud action. Petitioner submits that § 523(a)(2)(A) excepts from discharge only the portion of the damages award in a fraud action corresponding to the value of the “money, property, services, or ... credit” the debtor obtained by fraud. The essential premise of petitioner’s argument is that a “debt for” money, property, or services obtained by fraud is necessarily limited to the value of the money, property, or services received by the debtor. Petitioner, in this sense, interprets “debt for” — or alternatively, “liability on a claim for” — in § 523(a)(2)(A) to mean “liability on a claim to obtain,” i.e. “liability on a claim to obtain the money, property, services, or credit obtained by fraud,” thus imposing a restitutionary ceiling on the extent to which a debtor’s liability for fraud is nondischargeable. Petitioner’s reading of “debt for” in § 523(a)(2)(A), however, is at odds with the meaning of the same phrase in parallel provisions. Section 523(a) defines several categories of liabilities that are excepted from discharge, and the words “debt for” introduce many of them, viz., “debt ... for a tax or a customs duty ... with respect" }, { "docid": "11077708", "title": "", "text": "information shows that PRI received trust funds on the Jobs from June 16, 2011 through February 3, 2012. Ex. B. Although it is impossible to determine the exact date that any particular trust funds were misdirected, it is possible to calculate that approximately 60% of those trust funds were received from PRI customers after August 5, 2011. Because the defalcation occurred when Debtor failed to use those trust funds to pay MacArthur’s invoices, the Court will apportion damages based on the same percentage. The unpaid balance on MacArthur’s invoices is $79,625.94. Sixty percent of that amount is $47,775.56. The Court therefore concludes that $47,775.56 of the debt owed to MacArthur is nondis-chargeable under § 523(a)(4). 3. Treble Damages In addition to actual damages, Plaintiff seeks treble damages and prejudgment in terest as part of its nondisehargeable debt. The Supreme Court has held that an award of treble damages may be included in a nondisehargeable debt under § 523(a). Cohen v. de la Cruz, 523 U.S. 213, 218-19, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). In the Cohen case, the lower court had found that the debtor committed actual fraud within the meaning of § 523(a)(2)(A) and that his conduct amounted to an unconscionable commercial practice under a state consumer fraud act, justifying the award of treble damages under that statute. The Supreme Court held that once it is established that specific money or property has been obtained by fraud, then “any debt” arising therefrom is excepted from discharge. As noted by the Court, “[t]he most straightforward reading of § 523(a)(2)(A) is that it prevents discharge of ‘any debt’ respecting ‘money, property, services, or ... credit’ that the debtor has fraudulently obtained, including treble damages assessed on account of the fraud.” Id. at 218, 118 S.Ct. 1212. Courts have applied this reasoning to other subsections of § 523(a) and concluded that “the status of ancillary obligations such as attorney’s fees and interest” are determined by the nondisehargeable nature of “the primary debt,” and that therefore fees, costs and interest are ancillary to the nondisehargeable debt and are also nondisehargeable. See In" }, { "docid": "12271855", "title": "", "text": "the hens on their properties. The amounts represented by these hens, and Smith’s liability to Plaintiff on account of these charges, will be excepted from Debtors’ discharge pursuant to Section 523(a)(2)(A). Plaintiffs also seek to include attorney fees and cost of $12,555.05, plus interest, in the nondischargeable debt as further damages incurred as a result of Smith’s conduct. These attorney fees and costs were incurred by Plaintiffs to their lawyer in defending against the hen claims and the lien foreclosure suits brought against Plaintiffs by Glenn Electric, Franklin Building Supply, Low’s Ready Mix, and Nampa Floors. Defendant disputes the reasonableness and amount of the fees and costs. At trial, Defendant argued that Plaintiffs’ counsel was “over zealous” in defending the hen foreclosure actions and advanced needless defenses. However, after listening to testimony and reviewing the evidence concerning Plaintiffs’ counsel’s services and charges, it is clear to the Court that Plaintiffs’ counsel’s efforts were necessary and reasonable under the circumstances. The United States Supreme Court recently held that: the text of [Section] 523(a)(2)(A), the meaning of parallel provisions in the statute, the historical pedigree of the fraud exception, and the general policy underlying the exceptions to discharge all support our conclusion that “any debt ... for money, property, services, or ... credit, to the extent obtained by” fraud encompasses any liability arising from money, property, etc., that is fraudulently obtained, including treble damages, attorney’s fees, and other relief that may exceed the value obtained by the debtor. Cohen v. De La Cruz, 523 U.S. 213, 118 S.Ct. 1212, 1219, 140 L.Ed.2d 341 (1998). Plaintiffs’ need to retain counsel to defend their homes, and the fees and costs incurred as a result, were the natural and proximate consequence of the fraudulent conduct of Smith. Plaintiffs could not sit idly by hoping that the liens would be paid either by title insurance companies or by Smith. They were required to defend the foreclosure actions. Had they failed to do so, their mortgage lender could have objected to the existence of the pending liens and declared Plaintiffs in default on their home loans. See" }, { "docid": "12271854", "title": "", "text": "Smith’s deceit from the facts placed before them. Plaintiffs had no special knowledge of the intricacies of lien rights or real estate closings. They had no legal or other advisor to help them. In sum, Plaintiffs, given their knowledge and intelligence, should not be expected to have discovered facts from the surrounding circumstances that would have prompted them to perform a more thorough investigation of Smith and his busi ness practices. Plaintiffs justifiably relied on Smith’s representations that their homes would be free of any liens or encumbrances after closing. 4. Causation of Loss As a result of Smith’s failure to pay outstanding claims against Plaintiffs’ homes, several statutory liens were asserted against Plaintiffs’ homes in the amount of $22,713.45 (Bells) and $15,009.79 (Pacheco). As explained above, the transactions would not have closed and Plaintiffs would not have acquired the properties had Smith’s fraud been known to them or the title officers. Therefore, the false representations made by Smith were the proximate cause of any loss sustained by Plaintiffs in relation to discharging or contesting the hens on their properties. The amounts represented by these hens, and Smith’s liability to Plaintiff on account of these charges, will be excepted from Debtors’ discharge pursuant to Section 523(a)(2)(A). Plaintiffs also seek to include attorney fees and cost of $12,555.05, plus interest, in the nondischargeable debt as further damages incurred as a result of Smith’s conduct. These attorney fees and costs were incurred by Plaintiffs to their lawyer in defending against the hen claims and the lien foreclosure suits brought against Plaintiffs by Glenn Electric, Franklin Building Supply, Low’s Ready Mix, and Nampa Floors. Defendant disputes the reasonableness and amount of the fees and costs. At trial, Defendant argued that Plaintiffs’ counsel was “over zealous” in defending the hen foreclosure actions and advanced needless defenses. However, after listening to testimony and reviewing the evidence concerning Plaintiffs’ counsel’s services and charges, it is clear to the Court that Plaintiffs’ counsel’s efforts were necessary and reasonable under the circumstances. The United States Supreme Court recently held that: the text of [Section] 523(a)(2)(A), the meaning of" }, { "docid": "13939375", "title": "", "text": "that \"[w]e have not found, nor have the creditors directed our attention to, any cases holding that prepetition attorney's fees are nondis-chargeable under section 523(a) absent a state court judgment awarding attorney's fees to the creditors.” Id. at 1285. However, the Luce court’s limitation on the recovery of pre-petition attorney’s fees does not survive Cohen, discussed below. . 523 U.S. 213, 223, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). . Id. Cohen considered parallel provisions in section 523 and the \"historical pedigree of the fraud exception, and the general policy underlying the exceptions to discharge,” and found that “ 'any debt ... for money, property, services, or ... credit, to the extent obtained by’ fraud encompasses any liability arising from money, property, etc., that is fraudulently obtained, including treble damages, attorney’s fees, and other relief that may exceed the value obtained by the debtor.” Id. (citing § 523(a)(2)(A)). See also Bertola v. Northern Wisconsin Produce Co., Inc. (In re Bertola), 317 B.R. 95, 99-101 (9th Cir. BAP 2004). . Cohen, 523 U.S. at 220, 118 S.Ct. 1212. . Id. . Light v. Whittington (In re Whittington), Adv. No. 13-01121, 2014 WL 4163589, at *14-15 (Bankr.W.D.Tex. Aug. 20, 2014). . Jordan, 927 F.2d at 227. . No. 95-10023, 1996 WL 255304 (5th Cir. May 3, 1996). . Id. at *5 (internal citation not provided).. . Id. . Cohen, 523 U.S. at 220, 118 S.Ct. 1212. See also Gober v. Terra + Corp. (In re Gober), 100 F.3d 1195, 1208 (5th Cir. 1996) (holding “the status of ancillary obligations such as attorney’s fees and interest depends on that of the primary debt. When the primary debt is nondischargeable [based on conduct in section 523] ... the attorney’s fees and interest accompanying compensatory damages [resulting from that conduct], including post-judgment interest, are likewise nondischargeable.”). See also Stokes v. Ferris, 150 B.R. 388, 393 (W.D.Tex.1992) offd sub nom., Ferris v. Stokes (In re Stokes), 995 F.2d 76 (5th Cir. 1993) (“[A]ll debts, including statutory damages and legal fees, which flow from the debtor’s willful and malicious conduct are nondischargeable.”). . See S.P. Auto Sales," }, { "docid": "12271857", "title": "", "text": "Exhibit 186, p. 5, ¶ 2. Therefore, Plaintiffs’ attorney fees and costs are included in the damages excepted from discharge under Section 523(a)(2)(A). Plaintiffs’ counsel prepared detailed summaries and billings related to defending against the liens and the state court litigation, and separated out those fees and costs incurred for this adversary proceeding. The Court has reviewed the billings and finds that all fees and costs, save two charges of $84.00 each on Bells’ July 31, 1998 billing in the Glenn Electric suit, were reasonable and necessary in defending Plaintiffs in the foreclosure actions. The two disallowed charges, at least in part, related to the dischargeability proceedings as the service description indicates. See Plaintiffs’ Exhibit 181: July 31, 1998 Invoice. Interest charges have also been excluded since these did not naturally flow from Smith’s conduct but rather were a result of Plaintiffs taking advantage of available credit. The total amount of Plaintiffs’ attorney fees and costs which should be included in the nondischargeable debt is $6,722.85 with respect to Bells, and $5,664.20 with respect to Pacheco, for a total of $12,387.05. IV. Conclusion Plaintiffs have satisfied their burden of proof and established the requirements necessary under Section 523(a)(2)(A) to support a finding by this Court that debts arising from claims of liens against Plaintiffs’ homes in the amount of $22,713.45 (Bells) and $15,009.79 (Pacheco), as well as Plaintiffs’ attorney fees and costs incurred in defending against those liens in the amount of $6,722.85 (Bells) and $5,664.20 (Pacheco), should be excepted from Debt- or’s discharge. Counsel for Plaintiffs shall submit an appropriate form of judgment to be entered by the Court in accordance with this decision." }, { "docid": "22551383", "title": "", "text": "tenants treble damages totaling $94,147.50, plus reasonable attorney’s fees and costs. Noting that courts had reached conflicting conclusions on whether § 523(a)(2)(A) excepts from discharge punitive damages (such as the treble damages at issue here), the Bankruptcy Court sided with those decisions holding that § 523(a)(2)(A) encompasses all obligations arising out of fraudulent. conduct, including both punitive and compensatory damages. 185 B.R., at 188-189. The District Court affirmed. 191 B.R. 599 (1996). The Court of Appeals for the Third Circuit affirmed in a divided opinion. In re Cohen, 106 F.3d 52 (1997). After accepting the finding of the Bankruptcy Court that petitioner had committed fraud under § 523(a)(2)(A) and the New Jersey Consumer Fraud Act, the Court of Appeals turned to whether the treble damages portion of petitioner’s liability represents a “debt ... for money, property, services, or ... credit, to the extent obtained by ... actual fraud.” § 523(a)(2)(A). The court observed that the term “debt,” defined in the Code as a “right to payment,” § 101(5)(A), plainly encompasses all liability for fraud, whether in the form of punitive or compensatory damages. And the phrase “to the extent obtained by,” the court reasoned, modifies “money, property, services, or ... credit,” and therefore distinguishes not between compensatory and punitive damages awarded for fraud but instead between money or property obtained through fraudulent means and money or property obtained through nonfraudulent means. Id., at 57. Here, the court concluded, the entire award of $94,147.50 (plus attorney’s fees and costs) resulted from money obtained through fraud and is therefore nondischargeable. Id., at 59. Judge Greenberg dissented, concluding that treble damages are not encompassed by § 523(a)(2)(A) because they “do not refleet money, property, or services the debtor ‘obtained.’ ” Id., at 60. As the Court of Appeals recognized, id., at 56, its interpretation of § 523(a)(2)(A) is in accord with that of the Eleventh Circuit but in conflict with that of the Ninth Circuit. Compare In re St. Laurent, 991 F.2d 672, 677-681 (C A 11 1993), with In re Levy, 951 F.2d 196, 198-199 (C.A.9 1991). Bankruptcy eourts have likewise reached" }, { "docid": "10323917", "title": "", "text": "Abused its Discretion in Awarding Attorney’s Fees. The bankruptcy court relied on Pham and granted the Motion because the attorney’s fee provisions in the Agreement and the Note were broad enough to encompass a § 523(a)(2) action. On appeal, Redwood contends that the bankruptcy court erred because Pham involved a limited issue of a creditor’s right to attorney’s fees under § 523(a)(2). Alternatively, Redwood contends that Pham inappropriately extended the holding in Cohen v. de la Cruz, 523 U.S. 213, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). In Cohen, the Supreme Court upheld the bankruptcy court’s award of attorney’s fees in a § 523(a)(2) proceeding where the award was based on a state statute. See Cohen, 523 U.S. at 223, 118 S.Ct. 1212. There, the debtor-landlord charged his tenants rents in excess of a local ordinance. As a result, the local rent control administrator ordered the debtor to refund the rent overcharges. The debtor did not comply with the order and filed for a chapter 7. The tenants filed a complaint to determine the rent overcharges nondis-chargeable under § 523(a)(2)(A). They also sought treble damages and attorney’s fees pursuant to the New Jersey Consumer Fraud Act. The bankruptcy court held that the debts were nondischargeable under § 523(a)(2)(A) because the debtor committed actual fraud. The bankruptcy court also found that the debtor violated the New Jersey statute. As such, the bankruptcy court awarded the tenants treble damages and attorney’s fees pursuant to the state statute. Both the district court and the court of appeals for the Third Circuit affirmed. Id. at 216, 118 S.Ct. 1212. The Supreme Court granted certiorari. After considering the language and history of § 523(a)(2)(A), the Supreme Court held the attorney’s fees nondischargeable, stating: [T]he text of § 523(a)(2)(A), the meaning of parallel provisions in the statute, the historical pedigree of the fraud exception, and the general policy underlying the exceptions to discharge all support our conclusion that “any debt ... for money, property, services, or ... credit, to the extent obtained by” fraud encompasses any liability arising from money, property, etc., that is fraudulently obtained," }, { "docid": "22681714", "title": "", "text": "property, services, or ... credit, to the extent [that the money, property, services, or . . . credit is] obtained by” fraud. The phrase thereby makes clear that the share of money, property, etc., that is obtained by fraud gives rise to a nondisehargeable debt. Once it is established that specific money or property has been obtained by fraud, however, “any debt” arising therefrom is excepted from dis charge. In this case, petitioner received rent payments from respondents for a number of years, of which $31,382.50 was obtained by fraud. His fall liability traceable to that sum — $94,147.50 plus attorney’s fees and costs — thus falls within the exception. Petitioner does not dispute that the term “debt” encompasses treble damages or that the phrase “to the extent obtained by” modifies “money, property, services, or . . . credit.” He nonetheless contends that “any debt ... for money, property, services, or . . . credit, to the extent obtained by” fraud does not include treble damages awarded in a fraud action. Petitioner submits that § 523(a)(2)(A) excepts from discharge only the portion of the damages award in a fraud action corresponding to the value of the “money, property, services, or . . . credit” the debtor obtained by fraud. The essential premise of petitioner’s argument is that a “debt for” money, property, or services obtained by fraud is necessarily limited to the value of the money, property, or services received by the debtor. Petitioner, in this sense, interprets “debt for” — or alternatively, “liability on a claim for” — in § 523(a)(2)(A) to mean “liability on a claim to obtain,” i. e., “liability on a claim to obtain the money, property, services, or credit obtained by fraud,” thus imposing a restitutionary ceiling on the extent to which a debtor’s liability for fraud is nondisehargeable. Petitioner’s reading of “debt for” in § 523(a)(2)(A), however, is at odds with the meaning of the same phrase in parallel provisions. Section 523(a) defines several categories of liabilities that are excepted from discharge, and the words “debt for” introduce many of them, viz., “debt... for" }, { "docid": "10323918", "title": "", "text": "overcharges nondis-chargeable under § 523(a)(2)(A). They also sought treble damages and attorney’s fees pursuant to the New Jersey Consumer Fraud Act. The bankruptcy court held that the debts were nondischargeable under § 523(a)(2)(A) because the debtor committed actual fraud. The bankruptcy court also found that the debtor violated the New Jersey statute. As such, the bankruptcy court awarded the tenants treble damages and attorney’s fees pursuant to the state statute. Both the district court and the court of appeals for the Third Circuit affirmed. Id. at 216, 118 S.Ct. 1212. The Supreme Court granted certiorari. After considering the language and history of § 523(a)(2)(A), the Supreme Court held the attorney’s fees nondischargeable, stating: [T]he text of § 523(a)(2)(A), the meaning of parallel provisions in the statute, the historical pedigree of the fraud exception, and the general policy underlying the exceptions to discharge all support our conclusion that “any debt ... for money, property, services, or ... credit, to the extent obtained by” fraud encompasses any liability arising from money, property, etc., that is fraudulently obtained, including treble damages, attorney’s fees, and other relief that may exceed the value obtained by the debtor. Cohen, 523 U.S. at 223, 118 S.Ct. 1212 (emphasis added). In other words, “[o]nce it is established that specific money or property has been obtained by fraud, ... ‘any debt’ arising therefrom is excepted from discharge.” Id. at 218, 118 S.Ct. 1212. Because the attorney’s fees awarded to the tenants were allowed under the New Jersey law, they were “debts” arising from the fraud and therefore nondischargeable. Id. at 223, 118 S.Ct. 1212. Later, in Pham, the creditor filed a complaint to determine certain credit card debts nondisehargeable under § 523(a)(2)(A) and requested attorney’s fees under its cardmember agreements and CCC § 1717. The complaint alleged that the debtor obtained credit by actual fraud. The bankruptcy court granted a default judgment for the credit card debt, but denied the creditor’s request for attorney’s fees. See Pham, 250 B.R. at 94-95. On appeal, we noted that after Cohen, attorney’s fees are nondisehargeable under § 523(a)(2) if they are recoverable" }, { "docid": "13939374", "title": "", "text": "I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex.2006). . In certain circumstances, debtors who are successful in section 523 actions can recover attorney fees. 11 U.S.C. § 523(d) provides: If a creditor requests a determination of dischargeability of a consumer debt under subsection (a)(2) of this section, and such debt is discharged, the court shall grant judgment in favor of the debtor for the costs of, and a reasonable attorney’s fee for, the proceeding if the court finds that the position of the creditor was not substantially justified, except that the court shall not award such costs and fees if special circumstances would make the award unjust. . 927 F.2d 221, 226-27 (5th Cir.1991) overruled on other grounds, Coston v. Bank of Malvern (In re Coston), 991 F.2d 257 (5th Cir.1993). .Id. at 226-27. . Id. at 226-28 (emphasis omitted) (citing In re Martin, 761 F.2d 1163 (6th Cir.1985)). . 960 F.2d 1277, 1285-86 (5th Cir. 1992). . Luce separately addressed pre-petition and post-petition attorney's fees. As to pre-petition attorney’s fees, the court stated that \"[w]e have not found, nor have the creditors directed our attention to, any cases holding that prepetition attorney's fees are nondis-chargeable under section 523(a) absent a state court judgment awarding attorney's fees to the creditors.” Id. at 1285. However, the Luce court’s limitation on the recovery of pre-petition attorney’s fees does not survive Cohen, discussed below. . 523 U.S. 213, 223, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). . Id. Cohen considered parallel provisions in section 523 and the \"historical pedigree of the fraud exception, and the general policy underlying the exceptions to discharge,” and found that “ 'any debt ... for money, property, services, or ... credit, to the extent obtained by’ fraud encompasses any liability arising from money, property, etc., that is fraudulently obtained, including treble damages, attorney’s fees, and other relief that may exceed the value obtained by the debtor.” Id. (citing § 523(a)(2)(A)). See also Bertola v. Northern Wisconsin Produce Co., Inc. (In re Bertola), 317 B.R. 95, 99-101 (9th Cir. BAP 2004). . Cohen, 523 U.S. at 220, 118" }, { "docid": "22245447", "title": "", "text": "ruled that the debt in the total amount of $94,147.50 plus attorney’s fees and costs was nondischargeable. The Supreme Court rejected the debt- or’s argument that any “debt” incurred for money, property, services or credit obtained by fraud must be limited to the value of the money, property, services or credit actually received by the debtor. The Supreme Court observed that under New Jersey law, because the debtor used fraudulent means to obtain the $31,382.50, he was subject to the imposition of treble damages plus attorney’s fees and costs, and opined that: Once it is established that specific money or property has been obtained by fraud, however, “any debt” arising therefrom is excepted from discharge. In this case, petitioner received rent payments from respondents for a number of years, of which $31,382.50 was obtained by fraud. His full liability traceable to that sum — $94,147.50 plus attorney’s fees and costs — -thus falls within the exception. As petitioner acknowledges, his gloss on § 523(a)(2)(A) would allow the debtor in [certain] situations to discharge any liability for losses caused by his fraud in excess of the amount he initially received, leaving the creditor far short of being made whole. And the portion of a creditor’s recovery that exceeds the value of the money, property, etc., fraudulently obtained by the debtor — and that hence would be dischargeable under petitioner’s view — might include compensation not only for losses brought about by fraud but also for attorney’s fees and costs of suit associated with establishing fraud. Cohen, 118 S.Ct. at 1216,1218. Moen argues that Merchants is not entitled to an award of attorney’s fees because the basis for Merchants’ cause of action under section 523(a)(2)(A) is that the Equity Credit Agreement was terminated upon release of the mortgage and, therefore, Moen committed fraud by writing special purpose checks on the account after the account should have been closed. Moen contends that if the Equity Credit Agreement was terminated, the provision for attorney’s fees is no longer viable. However, Moen confuses the issue of whether he was an authorized borrower under the Equity" }, { "docid": "22551396", "title": "", "text": "amicus curiae, posits another example along these lines, involving “a debtor who fraudulently represents to aircraft manufacturers that his steel bolts are aircraft quality [and] obtains $5,000” for the bolts, but “the fraud causes a multi-million dollar airplane to crash.” Brief for United States as Amicus Curiae 21. As petitioner acknowledges, his gloss on § 523(a)(2)(A) would allow the debtor in those situations to discharge any liability for losses caused by his fraud in excess of the amount he initially received, leaving the creditor far short of being made whole. And the portion of a creditor’s recovery that exceeds the value of the money, property, etc., fraudulently obtained by the debtor — and that hence would be dischargeable under petitioner’s view — might include compensation not only for losses brought about by fraud but also for attorney’s fees and costs of suit associated with establishing fraud. But see § 523(d) (allowing award of attorney’s fees and costs to the debtor where a creditor requests dischargeability determination under § 523(a)(2) for a consumer debt that is ultimately found to be dischargeable). Those sorts of results would not square with the intent of the fraud exception. As we have observed previously in addressing different issues surrounding the scope of that exception, it is “unlikely that Congress ... would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud.” Grogan, supra, at 287, 111 S.Ct., at 659-660. In short, the text of § 523(a)(2)(A), the meaning of parallel provisions in the statute, the historical pedigree of the fraud exception, and the general policy underlying the exceptions to discharge all support our conclusion that “any debt ... for money, property, services, or ... credit, to the extent obtained by” fraud encompasses any liability arising from money, property, etc., that is fraudulently obtained, including treble damages, attorney’s fees, and other relief that may exceed the value obtained by the debtor. Under New Jersey law, the debt for fraudulently obtaining $31,382.50 in rent payments includes treble damages and attorney’s fees and costs, and consequently, petitioner’s entire" }, { "docid": "22551397", "title": "", "text": "ultimately found to be dischargeable). Those sorts of results would not square with the intent of the fraud exception. As we have observed previously in addressing different issues surrounding the scope of that exception, it is “unlikely that Congress ... would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud.” Grogan, supra, at 287, 111 S.Ct., at 659-660. In short, the text of § 523(a)(2)(A), the meaning of parallel provisions in the statute, the historical pedigree of the fraud exception, and the general policy underlying the exceptions to discharge all support our conclusion that “any debt ... for money, property, services, or ... credit, to the extent obtained by” fraud encompasses any liability arising from money, property, etc., that is fraudulently obtained, including treble damages, attorney’s fees, and other relief that may exceed the value obtained by the debtor. Under New Jersey law, the debt for fraudulently obtaining $31,382.50 in rent payments includes treble damages and attorney’s fees and costs, and consequently, petitioner’s entire debt of $94,147.50 (plus attorney’s fees and costs) is nondischargeable in bankruptcy. Accordingly, we affirm the judgment of the Court of Appeals. It is so ordered. The Bankruptcy Court characterized an award of treble damages under the New Jersey Consumer Fraud Act as punitive in nature, see 185 B.R., at 188, and the Court of Appeals assumed as much without deciding the question, In re Cohen, 106 F.3d 52, 55, n. 2 (C.A.3 1997). That issue does not affect our analysis, and we have no occasion to revisit it here." }, { "docid": "16231494", "title": "", "text": "particular debt is nondischargeable ‘[i]f the debtor benefits in some way’ from the money, property, services, or credit obtained through deception.”). However, these rulings were made before the Supreme Court’s decision in Cohen v. de la Cruz, 523 U.S. 213, 223, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). In Cohen, the creditor in a bankruptcy case was awarded treble damages, attorney’s fees, and costs. Id. at 215-16. The debtor argued that attorney’s fees, treble damages, and costs should not be deemed nondischargeable under § 523(a)(2)(A) because § 523(a)(2)(A) only encompasses the value of the money, property, or services a debtor obtains from fraud. Id. at 217-18, 118 S.Ct. 1212. Therefore, to the extent that punitive or compensatory damages exceed the amount actually obtained by the debtor from fraud, the award is not subject to § 523(a)(2)(A). The Supreme Court found that the overriding purpose of § 523 is to protect victims of fraud. Id. at 222-23, 118 S.Ct. 1212. Therefore, without any indication from Congress in § 523(a)(2)(A) itself, the Court found it unlikely that a debtor would be held responsible only for restitutionary damages arising from fraud. Id. at 223, 118 S.Ct. 1212. The Court held that [T]he text of § 523(a)(2)(A), the meaning of parallel provisions in the statute, the historical pedigree of the fraud exception, and the general policy underlying the exceptions to discharge all support our conclusion that ‘any debt ... for money, property, or services, or ... credit, to the extent obtained by’ fraud encompasses any liability arising from money, property, etc., that is fraudulently obtained, including treble damages, attorney’s fees, and other relief that may exceed the value obtained by the debtor. Id. (emphasis added). Although the Court’s opinion in Cohen did not address the precise issue presented in this case — whether a debtor must have obtained some benefit from the fraud for a debt to be held nondischargeable under § 523(a)(2)(A) — the Court’s analysis in Cohen indicates that a finding of debt due to fraud is all that is necessary to satisfy § 523(a)(2)(A). Id. The Fifth Circuit and Fourth Circuit" }, { "docid": "22245446", "title": "", "text": "clearly provides that Jerome Moen will pay all costs incurred by Merchants to collect the debt, including reasonable attorney’s fees. Further, last year the United States Supreme Court in Cohen v. de la Cruz, 523 U.S. 213, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998), affirmed the lower courts’ holding that section 523(a)(2)(A) prevents the discharge of all liability arising from fraud, including an award of punitive damages assessed on account of the fraud plus attorney’s fees and costs, and other relief that may exceed the value obtained by the debtor. In Cohen the Hoboken Rent Control Administrator determined that the debtor had been charging excessive rents and ordered him to refund $31,382.50 to the affected tenants. The debtor did not comply with this order and subsequently filed a Chapter 7 bankruptcy petition. The tenants filed an adversary proceeding contending that the debt was nondis-chargeable under section 523(a)(2)(A) and also sought treble damages and attorney’s fees and costs under the New Jersey Consumer Fraud Act. The bankruptcy court granted the relief requested by the tenants and ruled that the debt in the total amount of $94,147.50 plus attorney’s fees and costs was nondischargeable. The Supreme Court rejected the debt- or’s argument that any “debt” incurred for money, property, services or credit obtained by fraud must be limited to the value of the money, property, services or credit actually received by the debtor. The Supreme Court observed that under New Jersey law, because the debtor used fraudulent means to obtain the $31,382.50, he was subject to the imposition of treble damages plus attorney’s fees and costs, and opined that: Once it is established that specific money or property has been obtained by fraud, however, “any debt” arising therefrom is excepted from discharge. In this case, petitioner received rent payments from respondents for a number of years, of which $31,382.50 was obtained by fraud. His full liability traceable to that sum — $94,147.50 plus attorney’s fees and costs — -thus falls within the exception. As petitioner acknowledges, his gloss on § 523(a)(2)(A) would allow the debtor in [certain] situations to discharge any liability" }, { "docid": "22551381", "title": "", "text": "Justice O’CONNOR delivered the opinion of the Court. Section 523(a)(2)(A) of the Bankruptcy Code excepts from discharge in bankruptcy “any debt ... for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by ... false pretenses, a false representation, or actual fraud.” 11 U.S.C. § 523(a)(2)(A). The issue in this case is whether § 523(a)(2)(A) bars the discharge of treble damages awarded on account of the debtor’s fraudulent acquisition of “money, property, services, or ... credit,” or whether the exception only encompasses the value of the “money, property, services, or ... credit” the debtor obtains through fraud. We hold that § 523(a)(2)(A) prevents the discharge of all liability arising from fraud, and that an award of treble damages therefore falls within the scope of the exception. I Petitioner owned several residential properties in and around Hoboken, New Jersey, one of which was subject to a local rent control ordinance. In 1989, the Hoboken Rent Control Administrator determined that petitioner had been charging rents above the levels permitted by the ordinance, and ordered him to refund to the affected tenants, who are respondents in this Court, $31,382.50 in excess rents charged. Petitioner did not comply with the order. Petitioner subsequently filed for relief under Chapter 7 of the Bankruptcy Code, seeking to discharge his debts. The tenants filed an adversary proceeding against petitioner in the Bankruptcy Court, arguing that the debt owed to them arose from rent payments obtained by “actual fraud” and that the debt was therefore nondischargeable under 11 U.S.C. § 523(a)(2)(A). They also sought treble damages and attorney’s fees and costs pursuant to the New Jersey Consumer Fraud Act. See N.J. Stat. Ann. §§ 56:8-2, 56:8-19 (West 1989). Following a bench trial, the Bankruptcy Court ruled in the tenants’ favor. In re Cohen, 185 B.R. 171 (1994); 185 B.R. 180 (1995). The court found that petitioner had committed “actual fraud” within the meaning of 11 U.S.C. § 523(a)(2)(A) and that his conduct amounted to an “unconscionable commercial practice” under the New Jersey Consumer Fraud Act. As a result, the court awarded the" }, { "docid": "12271856", "title": "", "text": "parallel provisions in the statute, the historical pedigree of the fraud exception, and the general policy underlying the exceptions to discharge all support our conclusion that “any debt ... for money, property, services, or ... credit, to the extent obtained by” fraud encompasses any liability arising from money, property, etc., that is fraudulently obtained, including treble damages, attorney’s fees, and other relief that may exceed the value obtained by the debtor. Cohen v. De La Cruz, 523 U.S. 213, 118 S.Ct. 1212, 1219, 140 L.Ed.2d 341 (1998). Plaintiffs’ need to retain counsel to defend their homes, and the fees and costs incurred as a result, were the natural and proximate consequence of the fraudulent conduct of Smith. Plaintiffs could not sit idly by hoping that the liens would be paid either by title insurance companies or by Smith. They were required to defend the foreclosure actions. Had they failed to do so, their mortgage lender could have objected to the existence of the pending liens and declared Plaintiffs in default on their home loans. See Exhibit 186, p. 5, ¶ 2. Therefore, Plaintiffs’ attorney fees and costs are included in the damages excepted from discharge under Section 523(a)(2)(A). Plaintiffs’ counsel prepared detailed summaries and billings related to defending against the liens and the state court litigation, and separated out those fees and costs incurred for this adversary proceeding. The Court has reviewed the billings and finds that all fees and costs, save two charges of $84.00 each on Bells’ July 31, 1998 billing in the Glenn Electric suit, were reasonable and necessary in defending Plaintiffs in the foreclosure actions. The two disallowed charges, at least in part, related to the dischargeability proceedings as the service description indicates. See Plaintiffs’ Exhibit 181: July 31, 1998 Invoice. Interest charges have also been excluded since these did not naturally flow from Smith’s conduct but rather were a result of Plaintiffs taking advantage of available credit. The total amount of Plaintiffs’ attorney fees and costs which should be included in the nondischargeable debt is $6,722.85 with respect to Bells, and $5,664.20 with respect to" }, { "docid": "22681709", "title": "", "text": "New Jersey Consumer Fraud Act. As a result, the court awarded the tenants treble damages totaling $94,147.50, plus reasonable attorney’s fees and costs. Noting that courts had reached conflicting conclusions on whether § 523(a)(2)(A) excepts from discharge punitive damages (such as the treble damages at issue here), the Bankruptcy Court sided with those decisions holding that § 523(a)(2)(A) encompasses all obligations arising out of fraudulent conduct, including both punitive and compensatory damages. 185 B. R., at 188-189. The District Court affirmed. 191 B. R. 599 (1996). The Court of Appeals for the Third Circuit affirmed in a divided opinion. In re Cohen, 106 F. 3d 52 (1997). After accepting the finding of the Bankruptcy Court that petitioner had committed fraud under § 523(a)(2)(A) and the New Jersey Consumer Fraud Act, the Court of Appeals turned to whether the treble damages portion of petitioner’s liability represents a \"debt ... for money, property, services, or . . . credit, to the extent obtained by . . . actual fraud.” § 523(a)(2)(A). The court observed that the term “debt,” defined in the Code as a “right to payment,” §101(5)(A), plainly encompasses all liability for fraud, whether in the form of punitive or compensatory damages. And the phrase “to the extent obtained by,” the court reasoned, modifies “money, property, services, or ... credit,” and therefore distinguishes not between compensatory and punitive damages awarded for fraud but instead between money or property obtained through fraudulent means and money or property obtained through nonffaudulent means. Id., at 57. Here, the court concluded, the entire award of $94,147.50 (plus attorney’s fees and costs) resulted from money obtained through, fraud and is therefore nondischargeable. Id., at 59. Judge Greenberg dissented, concluding that treble damages are not encompassed by § 523(a)(2)(A) because they “do not reflect money, property, or services the debtor ‘obtained.’” Id., at 60. As the Court of Appeals recognized, id., at 56, its interpretation of § 523(a)(2)(A) is in accord with that of the Eleventh Circuit but in conflict with that of the Ninth Circuit. Compare In re St. Laurent, 991 F. 2d 672, 677-681 (CA11" }, { "docid": "16231495", "title": "", "text": "a debtor would be held responsible only for restitutionary damages arising from fraud. Id. at 223, 118 S.Ct. 1212. The Court held that [T]he text of § 523(a)(2)(A), the meaning of parallel provisions in the statute, the historical pedigree of the fraud exception, and the general policy underlying the exceptions to discharge all support our conclusion that ‘any debt ... for money, property, or services, or ... credit, to the extent obtained by’ fraud encompasses any liability arising from money, property, etc., that is fraudulently obtained, including treble damages, attorney’s fees, and other relief that may exceed the value obtained by the debtor. Id. (emphasis added). Although the Court’s opinion in Cohen did not address the precise issue presented in this case — whether a debtor must have obtained some benefit from the fraud for a debt to be held nondischargeable under § 523(a)(2)(A) — the Court’s analysis in Cohen indicates that a finding of debt due to fraud is all that is necessary to satisfy § 523(a)(2)(A). Id. The Fifth Circuit and Fourth Circuit have found as much in two cases since Cohen was decided. In re M.M. Winkler & Assocs., 239 F.3d 746, 749 (5th Cir.2001); In re Pleasants, 219 F.3d 372, 375 (4th Cir.2000) (stating that the language of Cohen is “broad enough to encompass a situation in which no portion of a creditor’s claims was literally transferred to the fraudulent debtor”). As the Fifth Circuit noted, “Cohen indicates that whether the debt arises from fraud is the only consideration material to nondis-chargeability. It also indicates that we should not read requirements like receipt of benefits into § 523(a)(2)(A) and that the discharge exceptions protect fraud victims rather than debtors.” Winkler, 239 F.3d at 749. In light of Cohen, the Fourth and Fifth Circuit’s analysis of the “obtained by” language in § 523(a)(2)(A) is sound, and should be adopted. It is only the fact of an adverse fraud judgment, and nothing more, that is required for a debt to be nondischargeable. Accordingly, we find that in light of Cohen, the receipt of a benefit is no longer" } ]

[ { "docid": "3395879", "title": "", "text": "Podea v. Acheson, 2 Cir., 1950, 179 F.2d 306. The Government based its denial of the passport solely upon the act of voting. The law does not require the American-born child of alien parents to do anything during his minority. See, Perkins v. Elg, 1939, 307 U.S. 325, 329-334, 59 S.Ct. 884, 83 L.Ed. 1320. It allows a period of two years after attaining majority to take steps to show his resumption of American nationality by returning to the United States and “acquiring permanent residence” therein. 8 U.S.C.A. § 801(a). The Government contends that the two-year period has expired. This may be true. But within the two-year period, the plaintiff did assert his American nationality by claiming the right to a passport, which would have enabled him to return to the United States. The Government rejected this plea. It is continuing to block it by resisting this suit. The plaintiff is in the United States under a “Certificate of Identity”, which permits his stay pending the outcome of this litigation. And the Government cannot, in justice, be allowed to claim that, because it has, successfully thus far, thwarted his efforts to gain recognition of his citizenship, the statute of limitations has run. Even if it be assumed that there were other means than the one chosen by the plaintiff, — demand for a passport,— to secure recognition of his citizenship, it may be assumed that the Government would have resisted those efforts as it is resisting the present one. It is a fundamental rule of equity jurisprudence that he who prevents the exercise of a right by another cannot insist that the right was lost during the period in whicii its exercise was prevented by him or by order of court. This is also true where the act is prevented by “paramount authority”. Thus, a person who prevents the enforcement of a right through injunctive process or other court action, cannot claim, at the same time, that the statute of limitations has run against the right during the period of restraint, in which, by his action, he prevented enforcement. 54" } ]

[ { "docid": "5384547", "title": "", "text": "court repudiated, but we think the validity of the view taken in them was recognized by us in Acheson v. Mariko Kuniyuki, 9 Cir., 189 F.2d 741. , A study of the findings and opinion below indicates unmistakably the view of the judge that the very upbringing of appellant rendered it inevitable that he would obey the orders of his elders in the matter of voting, from which it would seem to follow that the voting was not representative of a voluntary choice on appellant’s part. Compare the facts here with those in Tomoya Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249, where Kawakita claimed unavailingly that by choice after majority he had expatriated himself. We think the holding below is out of line with the Kawakita decision, as well as wholly inconsistent with the philosophy of Mandoli v. Acheson, supra. The inconsistency with the latter case becomes all the more glaring upon a study of the opinion of the dissenting justices. The judgment is reversed and the cause is remanded with directions to make a finding on the question whether appellant’s voting was voluntary, such finding to be made in light of what the majority has here held to be the law. . He reached the age of twenty-one on March 13, 1947. . See the excellent statement of Judge Yankwich in Hichino Uyeno v. Acheson, D.C., 96 F.Supp. 510. POPE, Circuit Judge (concurring). I agree that the case of Mandoli v. Acheson, 334 U.S. 133, 73 S.Ct. 135, decided after the decision of the trial court, necessitates a reversal. I also agree that by our decision in Acheson v. Marika Kuniyuki, 9 Cir., 189 F.2d 741, we approve the view of the law expressed by Judge Yankwich in Hichino Uyeno v. Acheson, D.C., 96 F.Supp. 510. I think, however, that these conclusions lead to the result that there remains a question of fact undecided, namely, whether the appellant’s voting was voluntary. As I read the record this question has not yet been decided in the light of what we have here held to" }, { "docid": "5384546", "title": "", "text": "the trial judge that the manner of appellant’s upbringing unfitted him for American citizenship, and that neither prior to nor upon his reaching his majority had he elected to retain it. The case was decided prior to Mandoli v. Acheson, 344 U.S. 133, 73 S.Ct. 135, 138, in which the Court held that it is not legally required that a citizen by nativity elect between dual citizenship upon or after reaching majority. The Court thought that “the dignity of citizenship which the Constitution confers as a birthright upon every person born within its protection is not to be withdrawn or extinguished by the courts except pursuant to a clear statutory mandate.” The government argues that while appellant was not required to make an election he might choose to do so, and that he did so choose by voting. However, in order to effect expatriation the voting must have been voluntary. A number of district courts have held that the fear of loss of a ration card is sufficient to constitute duress. These decisions the trial court repudiated, but we think the validity of the view taken in them was recognized by us in Acheson v. Mariko Kuniyuki, 9 Cir., 189 F.2d 741. , A study of the findings and opinion below indicates unmistakably the view of the judge that the very upbringing of appellant rendered it inevitable that he would obey the orders of his elders in the matter of voting, from which it would seem to follow that the voting was not representative of a voluntary choice on appellant’s part. Compare the facts here with those in Tomoya Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249, where Kawakita claimed unavailingly that by choice after majority he had expatriated himself. We think the holding below is out of line with the Kawakita decision, as well as wholly inconsistent with the philosophy of Mandoli v. Acheson, supra. The inconsistency with the latter case becomes all the more glaring upon a study of the opinion of the dissenting justices. The judgment is reversed and the cause is" }, { "docid": "311210", "title": "", "text": "96 L.Ed. 701. Nevertheless, the occupation and government of Japan by the Supreme Commander of the Allied Powers was a military possession recognized by principles of the international law of war. 56 Am.Jur., War, § 204. The evidence received on behalf of the defendant consisted of copies of newspaper articles in the “Nippon Times” published in Tokyo, Japan, and the Pacific Edition of “Stars and Stripes” dated April 2, 1947, in which the, American consulate officials in Yokohama warned American citizens of Japanese ancestry residing in Japan that voting in the April elections would cause forfeiture of their American citizenship. No showing was made that-plaintiff had ever read the articles or heard of their contents prior to April 20 and April 30, 1947. Before the penalty of expatriation under Section 401 of the Nationality Act of 1940, 8 U.S.C.A § 801, may be imposed, it must be made to appear to the Court that plaintiff’s voting in the 1947 elections was a voluntary act. Tákehara v. Dulles, 9 Cir., 205 F.2d 560. The right of American citizenship which the Constitution conferred upon plaintiff should not be extinguished except pursuant to a clear statutory mandate. Mandoli v. Acheson, 344 U.S. 133, 73 S. Ct. 135. And there is no reason for imposing a lighter burden on the Government if it seeks to prove expatriation of a native-born citizen than is required in denaturalization cases where the usual requirement of proof is “clear, unequivocal and convincing evidence”. Acheson v. Maenza, D.C.Cir., 202 F.2d 453, 456. In Bauer v. Clark, 7 Cir., 161 F.2d 397, 401, certiorari denied 332 U.S. 839, 68 S.Ct. .210, 92 L.Ed. 411, rehearing denied 332 U.S. 849, 68 S.Ct. 342, 92 L.Ed. 419, a case involving a complaint under Section 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903, it was held: “In one case (denaturalization proceeding) the government seeks to revoke by showing that the certificate was wrongly issued; in the other (expatriation proceeding) it seeks to destroy that which has been legally conferred. Certainly the annihilation of the right is equally disastrous to the" }, { "docid": "8186717", "title": "", "text": "of such doubt in favor of the claimant to citizenship enables him to meet the burden of showing involuntariness. Reversed and remanded. . The court also concluded that he had expatriated himself by continuous residence in Italy after attaining majority and failing to elect American citizenship by returning to this country and talring up permanent residence therein. This basis for sustaining the judgment is now unavailable and is not pressed by the appellee because of the decision in Mandoli v. Acheson, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146. See, also, Dulles v. Iavarone, - U.S.App.D.C. -, 221 F.2d 826. . 34 Stat. 1228. . 54 Stat. 1137, 1171. [1952 Revision, 8 U.S.C.A. § 1503.] . See subsequent proceedings in same case, reported at 3 Cir., 214 F.2d 403. . Such service came into the statute as ground of expatriation in the Nationality Act of 1940, 54 Stat. 1137, 1169. [1952 Revision, 8 U.S.C.A. § 1481(a).] . Some liglit is thrown upon his own intention and state of mind by his attempts to comply with what he thought were the requirements of American law. He not only registered in 1928 but one year later presented himself for a second registration, only then to be informed that this step was unnecessary. He says also that he returned to the Consulate to protest notice he liad received that he had lost his American citizenship. His testimony as to the time of this is perhaps inaccurate since he places it in 1933 or 1934, while the certificate of expatriation made by the Vice Consul at Palermo is dated Jane 18, 1935. Ilis protest no doubt was in the latter year. He further testified that in 1941, a few days after Pearl Harbor, he went to the Consulate again so that lie could be sent back to the United States as soon as possible. . In affirming the judgment on independent grounds we said: “We need not consider whether an oath of allegiance to the King of Italy, which appellant was obliged to take when he was drafted into the Italian army, was" }, { "docid": "4125666", "title": "", "text": "unequivocal renunciation of citizenship before a United States Consul in Canada, Jolley argues that his renunciation was made under duress. The coercion, according to petitioner, was his desire to avoid breaking the Selective Service laws of the United States. Most of the cases concerning duress have involved those sections of the Immigration and Nationality Act which have declared that the loss of United States citizenship shall result from specified conduct, such as voting in a foreign election or serving in a foreign army. Prior to the decision in Afroyim v. Rusk, supra, which held that expatriation could be accomplished only by voluntarily relinquishing citizenship and not simply by engaging in proscribed conduct, the Supreme Court had ruled that the legislatively-defined conduct set forth in the Act could result in expatriation only if the actor engaged in the conduct voluntarily. Since the instant case involves an explicit renunciation, not a renunciation by inference or by legislative command, we face the precise question raised in those earlier cases: whether or not Jolley’s expatriating act was voluntary. In such an inquiry, therefore, those earlier cases remain instructive. In Nishikawa v. Dulles, supra, the Court held that conscription of a dual national into the Japanese Army during World War II did not automatically result in expatriation despite explicit statutory language, see 8 U.S.C.A. § 1481 (a) (3), for Japanese penal sanctions to which the national was subject rendered the service in the foreign army involuntary. See also Takehara v. Dulles, 9 Cir. 1953, 205 F.2d 560; Takano v. Dulles, D. Hawaii 1953, 116 F.Supp. 307 [voting in foreign election motivated by fear of loss of ration cards involuntary and not expatriating under 8 U.S.C.A. § 1481(a) (5)]; Acheson v. Murakami, 9 Cir. 1949, 176 F.2d 953; Inouye v. Clark, S.D.Cal. 1947, 73 F.Supp. 1000, rev’d on other grounds, 9 Cir. 1949, 175 F.2d 740 [decisions to renounce United States citizenship by Japanese-Americans confined at Tule Lake detention center during World War II held not the product of sober choice but rather the result of force and violence, conditions characteristic of detention center.] Petitioner, of" }, { "docid": "5657156", "title": "", "text": "give up his United States citizenship in favor of Mexican citizenship. In support of this argument, defendant contends that in Mandoli v. Acheson, 1952, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146, the Court held that one who is born in this country cannot elect to give up his citizenship, thus overruling Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. There is no merit in this contention. Perkins v. Elg held that one who is born in the United States, lives abroad during his minority, and has dual citizenship by virtue of the place of his birth and the citizenship of his parents, may elect to remain a citizen of the United States upon reaching majority. Mandoli v. Acheson qualified this rule by holding that one with dual citizenship will not lose his American citizenship by merely failing to elect. But it is still the law that one born in the United States with dual citizenship may, by his acts, give up his American citizenship, if such acts are voluntarily done after reaching majority. 8 U.S.C.A. § 1481; Mandoli v. Acheson, supra, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146; Takehara v. Dulles, 9 Cir., 1953, 205 F.2d 560, 562; Longobardi v. Dulles, 1953, 92 U.S.App.D.C. 263, 204 F.2d 407, 408-409; cf. Kawakita v. United States, 1952, 343 U. S. 717, 722-727, 72 S.Ct. 950, 96 L.Ed. 1249; Hichino Uyeno v. Acheson, D.C. W.D.Wash.1951, 96 F.Supp. 510, 513-514. There was no error of law in the 1943 determination of defendant’s status as that of an alien. Accordingly, defendant’s motion to strike the evidence of the adjudication of his status as an alien in the 1943 proceeding is hereby denied. However, as already observed, the pri- or adjudication is conclusive of defendant’s status as an alien as of June 9, 1943, only. The next question then is whether the defendant’s nationality status continued to be that of an alien after the 1943 adjudication. To deal with this, question of the continuance of that status in the interim to date, the rule of evidence as" }, { "docid": "5657151", "title": "", "text": "323, 70 P.2d 1015. To be sure, the issue of nationality status, as to which the Government would invoke collateral estoppel against the defendant in the case at bar, is neither an unchangeable nor an unchanging one. Nationality status can be and frequently is changed from that of alien to that of American citizen through the judicial process of naturalization. So the 1948 adjudication of defendant’s status as an alien could not amount to more than a determination that defendant was an alien as of the date of that adjudication on June 9, 1943. The first question, then, is whether the Government as prosecutor may invoke the doctrine of collateral estoppel against the accused to establish his nationality status as being that of alien as late as June 9, 1943. In Sealfon v. United States, supra, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180, the Court admonished that collateral estoppel should not be applied in any criminal proceeding except as to an issue which was actually litigated and necessarily .adjudicated, observing that: “The instructions under which the [prior] verdict was rendered * * * must be set in a practical frame and viewed with ;an eye to all the circumstances of the proceedings. We look to them only for such light as they shed on the issues determined by the verdict.” 332 U.S. at page 579, 68 S.Ct. at page 240. See also Yates v. United States, 1957, 354 U.S. 298, 335-338, 77 S.Ct. 1064, 1 L.Ed.2d 1356 and cf. Southern Pacific R. Co. v. United States, 1897, 168 U.S. 1, 26, 48-49,18 S.Ct. 18, 42 L.Ed. 355. Here there can be no doubt that the issue of defendant’s alienage was actually litigated between the Government .and defendant at the 1943 trial, both sides putting in evidence. It is equally beyond dispute that a finding of fact that defendant was then an alien was made, and that this finding was necessary to a judgment of guilty of the crime of illegal entry into the United States. Moreover, Perez did not appeal [see Fed.R.Crim.P. 37 and 38, 18 U.S.C.A.], nor" }, { "docid": "23481193", "title": "", "text": "144, 187 (1963), a case concerning native-born citizens, he observed: “We have recognized the entanglements which may stem from dual allegiance . . . .” In a famous case Mr. Justice Douglas wrote of the problem of dual citizenship. Kawakita v. United States, 343 U. S. 717, 723-736 (1952). He noted that “[o]ne who has a dual nationality will be subject to claims from both nations, claims which at times may be competing or conflicting,” id., at 733; that one with dual nationality cannot turn that status “into a fair-weather citizenship,” id., at 736; and that “ [circumstances may compel one who has a dual nationality to do acts which otherwise would not be compatible with the obligations of American citizenship,” ibid. The District Court in this very case conceded: “It is a legitimate concern of Congress that those who bear American citizenship and receive its benefits have some nexus to the United States.” 296 F. Supp., at 1252. 2. There are at least intimations in the decided cases that a dual national constitutionally may be required to make an election. In Perkins v. Elg, 307 U. S. 325, 329 (1939), the Court observed that a native-born citizen who had acquired dual nationality during minority through his parents’ foreign naturalization abroad did not lose his United States citizenship “provided that on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties.” In Kawakita v. United States, 343 U. S., at 734, the Court noted that a dual national “under certain circumstances” can be deprived of his American citizenship through an Act of Congress. In Mandoli v. Acheson, 344 U. S. 133, 138 (1952), the Court took pains to observe that there was no statute in existence imposing an election upon that dual nationality litigant. These cases do not flatly say that a duty to elect may be constitutionally imposed. They surely indicate, however, that this is possible, and in Mandoli the holding was based on the very absence of a statute and not on any theory of unconstitutionality. And all three" }, { "docid": "8186716", "title": "", "text": "to adopt a different position than the Supreme Court accepted in the Mandoli case, especially when we consider the doubt cast by Alata’s testimony as to the voluntary nature of his oath. This testimony, in view of conditions in Italy which took hold of him in 1933 in connection with his conscription into the Fascist army and the mass administration of an oath of allegiance which he says he did not hear, lead us to conclude that the oath taking was not such a voluntary or willful act of renunciation of American citizenship as the statute or decisions require to effect its loss. The contrary conclusion of the court below we think is not supported by its finding that the oath was taken. We have said that American citizenship is not to “be lightly taken away”, Acheson v. Maenza, supra, 92 U.S.App.D.C. at page 88, 202 F.2d at page 456, and when the evidence with its reasonable inferences creates substantial doubt of the voluntariness of the conduct said to have brought about expatriation the resolution of such doubt in favor of the claimant to citizenship enables him to meet the burden of showing involuntariness. Reversed and remanded. . The court also concluded that he had expatriated himself by continuous residence in Italy after attaining majority and failing to elect American citizenship by returning to this country and talring up permanent residence therein. This basis for sustaining the judgment is now unavailable and is not pressed by the appellee because of the decision in Mandoli v. Acheson, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146. See, also, Dulles v. Iavarone, - U.S.App.D.C. -, 221 F.2d 826. . 34 Stat. 1228. . 54 Stat. 1137, 1171. [1952 Revision, 8 U.S.C.A. § 1503.] . See subsequent proceedings in same case, reported at 3 Cir., 214 F.2d 403. . Such service came into the statute as ground of expatriation in the Nationality Act of 1940, 54 Stat. 1137, 1169. [1952 Revision, 8 U.S.C.A. § 1481(a).] . Some liglit is thrown upon his own intention and state of mind by his attempts to comply" }, { "docid": "4125667", "title": "", "text": "such an inquiry, therefore, those earlier cases remain instructive. In Nishikawa v. Dulles, supra, the Court held that conscription of a dual national into the Japanese Army during World War II did not automatically result in expatriation despite explicit statutory language, see 8 U.S.C.A. § 1481 (a) (3), for Japanese penal sanctions to which the national was subject rendered the service in the foreign army involuntary. See also Takehara v. Dulles, 9 Cir. 1953, 205 F.2d 560; Takano v. Dulles, D. Hawaii 1953, 116 F.Supp. 307 [voting in foreign election motivated by fear of loss of ration cards involuntary and not expatriating under 8 U.S.C.A. § 1481(a) (5)]; Acheson v. Murakami, 9 Cir. 1949, 176 F.2d 953; Inouye v. Clark, S.D.Cal. 1947, 73 F.Supp. 1000, rev’d on other grounds, 9 Cir. 1949, 175 F.2d 740 [decisions to renounce United States citizenship by Japanese-Americans confined at Tule Lake detention center during World War II held not the product of sober choice but rather the result of force and violence, conditions characteristic of detention center.] Petitioner, of course, points out the surface similarity of Nishikawa to the instant case, for it is petitioner’s contention that his expatriating act was also the product of a conscription law with penal sanctions. We disagree with the force of this analogy. Nishikawa was faced with the choice of either subjecting himself to Japanese penal sanctions or relinquishing his United States citizenship. The conflicting laws of the United States and Japan created a Hobson’s choice which rendered either alternative involuntary. The same dilemma did not confront Jolley. While we accept the assertion that Jolley’s abhorrence of the Selective Service laws caused him to apostatize himself, he cannot equate that abhorrence with coercion sufficient to render his renunciation involuntary as a matter of law. Dislike for the law does not in and of itself compose coercion; subjective detestation cannot be metamorphosed into duress. Jolley’s Hobson’s choice, if it be deemed such, was self-generated. The compulsion he felt to renounce his citizenship was of his own design. But opportunity to make a decision based upon personal choice is the" }, { "docid": "13120395", "title": "", "text": "of the appellee. The effect of the judgment is to declare that the appellant is not a citizen of the United States. The conclusion of the District Court that the appellant had lost her American citizenship by failing to return to the United States from Italy within a reasonable time after reaching her majority was rested, as appears from a memorandum opinion filed by the trial judge, upon Segreti v. Acheson, 90 U.S.App.D.C. 288, 195 F.2d 205 (1952), which decision was itself based upon Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320 (1939). The ruling in the Segreti case was that . .a child living abroad and possessing dual nationality through the action of his father, may upon reaching majority elect to preserve his American citizenship by promptly returning to this country and assuming the duties thereof, or conversely, by failing to do so retain his foreign nationality.” This ground of the District Court’s decision has been made insupportable by the decision of the Supreme Court in Mandoli v. Acheson, 344 U.S. 133, 73 S,Ct. 135, decided November 24, 1952. In that case the Court ruled that a citizen of the United States by birth who by foreign law derives from his parents citizenship of a foreign nation does not lose his United States citizenship by foreign residence long continued after reaching his majority. In so deciding the Court distinguished Perkins v. Elg, pointing out that under the facts in that case Miss Elg, horn in America of naturalized parents, Swedish in origin, who took her to Sweden during infancy, had shortly after she reached majority sought and obtained an American passport and returned to the United States where she resided for something like five years. The Court ruled that on these facts Perkins v. Elg did not present and therefore could not decide “any question as to consequences of a failure to elect American citizenship, for Miss Elg promptly did so elect and decisively evidenced it by resuming residence here.” The Court limited Perkins v. Elg thus : “ . . . What it held" }, { "docid": "23154034", "title": "", "text": "of winch he was apprised in 1928. His Mexican-born parents took him to Mexico when he was 10 or 11 years old. In 1932 petitioner married a Mexican national; they have seven children. In 1943 and 1944 petitioner sought and received permission to enter this country for brief periods as a wartime railroad laborer. In 1952 petitioner again entered this country as a temporary farm laborer. After he had been ordered deported as an alien illegally in the United States, he brought this action for a declaratory judgment of citizenship, relying upon his birth in this country. Section 401 (e) of the Nationality Act of 1940, 54 Stat. 1169, 8 U. S. C. § 1481 (5). The courts below concluded that petitioner had lost his citizenship for the additional reason specified in § 401 (j) of the Nationality Act, which was added in 1944, 58 Stat. 746, 8 U. S. C. § 1481 (10): “Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.” The majority expressly declines to rule on the constitutional questions raised by §401 (j). My views on a statute of this sort are set forth in my opinion in Trop v. Dulles, post, p. 86, decided this day, involving similar problems raised by § 401 (g) of the Nationality Act, 54 Stat. 1169, as amended, 8 U. S. C. § 1481 (8). See Borchard, Diplomatic Protection of Citizens Abroad (1916), §8; 1 Oppenheim, International Law (7th ed., Lauterpacht, 1948), §§291-294; Holborn, The Legal Status of Political Refugees, 1920-1938, 32 Am. J. Int’l L. 680 (1938); Preuss, International Law and Deprivation of Nationality, 23 Geo. L. J. 250 (1934); Study on Statelessness, U. N. Doc. No. E/1112 (1949); 64 Yale L. J. 1164 (1955). See Konvitz, The Alien and the Asiatic in American Law (1946); Comment, 20 U. of Chi. L. Rev. 547 (1953). Cf. Takahashi" }, { "docid": "23481194", "title": "", "text": "be required to make an election. In Perkins v. Elg, 307 U. S. 325, 329 (1939), the Court observed that a native-born citizen who had acquired dual nationality during minority through his parents’ foreign naturalization abroad did not lose his United States citizenship “provided that on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties.” In Kawakita v. United States, 343 U. S., at 734, the Court noted that a dual national “under certain circumstances” can be deprived of his American citizenship through an Act of Congress. In Mandoli v. Acheson, 344 U. S. 133, 138 (1952), the Court took pains to observe that there was no statute in existence imposing an election upon that dual nationality litigant. These cases do not flatly say that a duty to elect may be constitutionally imposed. They surely indicate, however, that this is possible, and in Mandoli the holding was based on the very absence of a statute and not on any theory of unconstitutionality. And all three of these cases concerned persons who were born here, that is, persons who possessed Fourteenth Amendment citizenship; they did not concern a person, such as plaintiff Bellei, whose claim to citizenship is wholly, and only, statutory. 3. The statutory development outlined in Part IV above, by itself and without reference to the underlying legislative history, committee reports, and other studies, reveals a careful consideration by the Congress of the problems attendant upon dual nationality of a person born abroad. This was purposeful and not accidental. It was legislation structured with care and in the light of then apparent problems. 4. The solution to the dual nationality dilemma provided by the Congress by way of required residence surely is not unreasonable. It may not be the best that could be devised, but here, too, we cannot say that it is irrational or arbitrary or unfair. Congress first has imposed a condition precedent in that the citizen parent must have been in the United States or its possessions not less than 10 years, at least five of" }, { "docid": "5657137", "title": "", "text": "until now of defendant’s motion to strike all evidence of the 1943 adjudication of his alienage which was received at the trial, upon the ground that in the prosecution at bar he is entitled to a trial de novo as to each essential element of the offense of which he now stands charged, including that of his nationality status. Defendant has also moved to strike the custodian’s deposition authenticating the baptismal record from Mexico, and the baptismal record itself, upon the ground that the procedures provided by 18 U.S.C..§§ 3492-3496 for authenticating the document by the testimony of an absent witness are unconstitutional, in depriving the accused of his right to confront all witnesses against him. U. S.Const, amend. VI. Turning first to defendant’s motion to strike the evidence of his 1943 conviction, it is the contention of the Government that the issue as to whether defendant was then an alien was necessarily and fully tried and adjudicated between the parties in 1943, and that the doctrine of res judicata, or more especially the doctrine of collateral estop-pel, may properly be invoked against defendant in order to obviate another trial of the nationality-status issue. See 8 U.S.C.A. §§ 1481-1484. The doctrines of res judicata and collateral estoppel have long been applied in criminal eases in the Federal courts. See: Sealfon v. United States, 1948, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180; United States v. Adams, 1930, 281 U.S. 202, 204-205, 50 S.Ct. 269, 74 L.Ed. 807; United States v. Oppenheimer, 1916, 242 U.S. 85, 86-88, 37 S.Ct. 68, 61 L.Ed. 161; Frank v. Mangum, 1915, 237 U.S. 309, 333-334, 35 S.Ct. 582, 59 L.Ed. 969; Yawn v. United States, 5 Cir., 1957, 244 F.2d 235, 237-238; Cosgrove v. United States, 9 Cir., 1955, 224 F.2d 146, 150; United States v. Simon, 3 Cir., 1955, 225 F.2d 260, 262; United States v. De Angelo, 3 Cir., 1943, 138 F.2d 466, 468-469; United States v. Carlisi, D.C.E.D.N.Y.1940, 32 F.Supp. 479, 481-483; United States v. Morse, D.C.S.D.N.Y. 1926, 24 F.2d 1001. To be held conclusive in a subsequent criminal proceeding" }, { "docid": "8745257", "title": "", "text": "1937 when he became of age. And, of course, an oath taken by him when under age would have been ineffective as an act of expatriation. Perri v. Dulles, 3 Cir., 206 F.2d 586. In this case there was no evidence at all of the applicable Italian law. Even so, the very fact that the plaintiff was conscripted as early as November, 1936 makes it more unlikely that he would have taken the oath as late as June 1937, —at least unless it be assumed without evidence that under Italian military practice the oath is administered to conscripted soldiers at successive intervals throughout a single period of service. In view of the meagre record we have considerable doubt that the Judge would have found that the plaintiff had taken the oath when of age if at the time of his finding our Monaco opinion had been available to him with its requirement that expatriation must be proved by clear, convincing and unequivocal evidence. However, it is unnecessary to rule definitely on the validity of that finding because we think a reversal is required by error entering into the finding that the oath was taken without duress. It is true that proof of the taking of an oath, standing alone, imports that it was taken voluntarily. Pandolfo v. Acheson, supra. But that presumption may be rebutted by proof that the oath was taken as an incident of compulsory military service. Perri v. Dulles, supra; Lehmann v. Acheson, 3 Cir., 206 F.2d 592. And in this case, since the findings of the court below show that the plaintiff had been drafted, the presumption of voluntariness was substantially rebutted. This conclusion, we think, finds support in the case of Mandoli v. Acheson, 344 U.S. 133, 73 S.Ct. 135, 136, 97 L.Ed. 146. That case, like this, was one in which the plaintiff below, also by birth a citizen of both Italy and of the United States, after conscription into the Italian army, sought a declaration of his American citizenship which was denied partly on the ground “that his service in the Italian army" }, { "docid": "13120394", "title": "", "text": "Court made findings of fact in substance and effect as follows: The plaintiff (appellant) was born in New York -City on November 14, 1920 of Italian parents. She was returned to-Italy in 1923, attained her majority there in 1941, voted voluntarily in administrative elections and again in national elections in Italy in 1946, and returned to the United States in 1950 on a certificate of identity. The correctness of these findings of fact is not in dispute. In view of these findings the District Court made in substance and effect the following conclusions of law; The plaintiff (appellant) was a dual national at birth and her dual nationality continued until after she reached her majority. She lost her American citizenship by failing to return to the United States from Italy within a reasonable time after reaching her majority. If she had not theretofore expatriated herself she did so by voting in the Italian elections in 1946. Upon the basis of these conclusions of law the District Court entered judgment against the appellant and in favor of the appellee. The effect of the judgment is to declare that the appellant is not a citizen of the United States. The conclusion of the District Court that the appellant had lost her American citizenship by failing to return to the United States from Italy within a reasonable time after reaching her majority was rested, as appears from a memorandum opinion filed by the trial judge, upon Segreti v. Acheson, 90 U.S.App.D.C. 288, 195 F.2d 205 (1952), which decision was itself based upon Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320 (1939). The ruling in the Segreti case was that . .a child living abroad and possessing dual nationality through the action of his father, may upon reaching majority elect to preserve his American citizenship by promptly returning to this country and assuming the duties thereof, or conversely, by failing to do so retain his foreign nationality.” This ground of the District Court’s decision has been made insupportable by the decision of the Supreme Court in Mandoli v. Acheson, 344" }, { "docid": "13120396", "title": "", "text": "U.S. 133, 73 S,Ct. 135, decided November 24, 1952. In that case the Court ruled that a citizen of the United States by birth who by foreign law derives from his parents citizenship of a foreign nation does not lose his United States citizenship by foreign residence long continued after reaching his majority. In so deciding the Court distinguished Perkins v. Elg, pointing out that under the facts in that case Miss Elg, horn in America of naturalized parents, Swedish in origin, who took her to Sweden during infancy, had shortly after she reached majority sought and obtained an American passport and returned to the United States where she resided for something like five years. The Court ruled that on these facts Perkins v. Elg did not present and therefore could not decide “any question as to consequences of a failure to elect American citizenship, for Miss Elg promptly did so elect and decisively evidenced it by resuming residence here.” The Court limited Perkins v. Elg thus : “ . . . What it held was that citizenship conferred by our Constitution upon a child born under its protection cannot be forfeited because the citizen during nonage is a passive beneficiary of foreign naturalization proceedings. It held that Miss Elg had acquired a derivative dual-citizenship but had not suffered a derivative expatriation. In affirming her right to return to and remain in this country, it did not hold that it was mandatory for her to do so.” The decision of the Supreme Court in Mandoli v. Acheson is, of course, controlling notwithstanding that it is later than the judgment below in the instant case. See Ruppert v. Rup-pert, 77 U.S.App.D.C. 65, 134 F.2d 497 (1942) and the authorities cited therein. The conclusion of the District Court that if the appellant had not theretofore expatriated herself she did so by voting in the Italian elections in 1946, was apparently based, though it did not explicitly refer thereto, upon the Act of October 14, 1940, c. 876, Title I, Subchap. IV, § 401, 54 Stat. 1168, Title 8, § 801(e), U.S.C.A. That" }, { "docid": "2589786", "title": "", "text": "interpretation of Afroyim. In that case the Court reasoned that since the mere act of voting elsewhere does not necessarily demonstrate a relinquishment of allegiance or an expression of disloyalty to the United States, one must look beyond the citizen’s bare conduct to determine whether he intended by so voting to forego his claim of citizenship. The same reasoning applies with equal force to a declaration of allegiance to a foreign sovereign or a petition for a certificate of Mexican nationality of the type executed by Mrs. Burns, which may simply represent the citizen’s claim of dual nationality rather than a turning of his back on the United States or a voluntary relinquishment of his American citizenship. See generally, Nishikawa v. Dulles, 356 U.S. 129, 135, 78 S.Ct. 612, 616, 2 L.Ed.2d 659, 664 (1958); Kawakita v. United States, 343 U.S. 717, 723-24, 72 S.Ct. 950, 955-56, 96 L.Ed. 1249, 1257 (1952); Jalbuena v. Dulles, 254 F.2d 379, 381 (3d Cir. 1958); Peters v. Secretary of State, 347 P.Supp. 1035, 1038 (D.D.C.1972) (3-judge court). Furthermore, since the purely objective legal meaning of such a declaration is likely to turn upon highly technical interpretations of foreign, domestic, and international law concerning the status of dual nationals, it would be unfair to strip an individual of his American birthright when he honestly but mistakenly believed that his conduct did not compromise his legal status as a United States citizen or as a dual national. Accordingly, to prevent such unfairness and to avoid questionable interpretations of the meaning and effect of a declaration or foreign naturalization petition, a citizen’s specific intent to relinquish his citizenship must be proven before a statement of loyalty to a foreign sovereign is binding as an act of expatriation. This requirement of proof recognizes the overwhelming importance of American citizenship. As the Supreme Court only recently has reminded us, the status of citizen, despite the expanding protection afforded aliens under the Equal Protection Clause, remains central to the very definition of a social and political community. Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 2850, 37" }, { "docid": "5657157", "title": "", "text": "voluntarily done after reaching majority. 8 U.S.C.A. § 1481; Mandoli v. Acheson, supra, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146; Takehara v. Dulles, 9 Cir., 1953, 205 F.2d 560, 562; Longobardi v. Dulles, 1953, 92 U.S.App.D.C. 263, 204 F.2d 407, 408-409; cf. Kawakita v. United States, 1952, 343 U. S. 717, 722-727, 72 S.Ct. 950, 96 L.Ed. 1249; Hichino Uyeno v. Acheson, D.C. W.D.Wash.1951, 96 F.Supp. 510, 513-514. There was no error of law in the 1943 determination of defendant’s status as that of an alien. Accordingly, defendant’s motion to strike the evidence of the adjudication of his status as an alien in the 1943 proceeding is hereby denied. However, as already observed, the pri- or adjudication is conclusive of defendant’s status as an alien as of June 9, 1943, only. The next question then is whether the defendant’s nationality status continued to be that of an alien after the 1943 adjudication. To deal with this, question of the continuance of that status in the interim to date, the rule of evidence as to the continuance of a condition or status, once proved to exist, may be invoked. “Proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference, within logical limits, that it exists at a subsequent time. * * *. It will be inferred that a given fact or set of facts, the existence of which at a particular time is once established in evidence, continues to exist so long as such facts usually do exist.” Noell v. United States, 9 Cir., 1950, 183 F.2d 334, 338, certiorari denied 1951, 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665; see also 31 C.J.S. Evidence § 124 (1942) and 9 Wigmore, Evidence § 2530 (3d ed. 1940).] The application of this rule of evidence is well illustrated in Mills v. United States, 9 Cir., 1921, 273 F. 625, 627-628. There the defendant had been ordered deported as an alien who had been convicted of an offense involving moral turpitude. Proof of alienage was sought to-be supplied by a" }, { "docid": "5657155", "title": "", "text": "any prior proceedings carefully examined in order to determine surely whether a prior adjudication of alienage was made after a full and adequate hearing, and was essential to a determination of the case. But where, as here, the issue has been fully and fairly litigated and a finding made which was necessary to a final determination of the prior proceeding, the status of defendant as an alien as of the date of such determination is conclusive in this subsequent case. The defendant advances the further contention that the 1943 proceeding should not be permitted to work a collateral estoppel on the issue as to his alienage because, the argument goes, the 1943 adjudication was based on a claimed error of law in that the decision then relied upon by this court was later overruled. More particularly, defendant urges that the 1943 finding was based upon one of two possible grounds: either (1) that he was not born in the United States; or (2) that, though born in this country, he elected by his acts to give up his United States citizenship in favor of Mexican citizenship. In support of this argument, defendant contends that in Mandoli v. Acheson, 1952, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146, the Court held that one who is born in this country cannot elect to give up his citizenship, thus overruling Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. There is no merit in this contention. Perkins v. Elg held that one who is born in the United States, lives abroad during his minority, and has dual citizenship by virtue of the place of his birth and the citizenship of his parents, may elect to remain a citizen of the United States upon reaching majority. Mandoli v. Acheson qualified this rule by holding that one with dual citizenship will not lose his American citizenship by merely failing to elect. But it is still the law that one born in the United States with dual citizenship may, by his acts, give up his American citizenship, if such acts are" } ]

[ { "docid": "23223886", "title": "", "text": "parties cease talking about the investigation. Without attributing the information to a particular source, the article depicted the general chain of events that led to the grand jury probe and then indicated that during the summer and fall of 1978, the grand jury had subpoenaed financial documents from persons and organizations that had dealt with Lance, with the records of as many as forty-five persons and organizations being subpoenaed at one time. The next article cited by Lance appeared in the Atlanta Journal on March 20, 1979. It reported that the Justice Department had appointed Paul Curran as “special counsel” to investigate loans made by National Bank of Georgia to President Carter’s peanut warehousing business. Gamering the information from a report made by CBS news, the article revealed that Justice Department officials in Washington, D.C., had decided to seek an indictment from the grand jury against Lance and three of his associates when it reconvened the following week. The news report quoted “sources in the Justice Department” as stating that the indictment would charge Lance and his associates with violating federal banking laws while he was the chief executive officer of the First National Bank of Calhoun and the National Bank of Georgia, but would not allege any improprieties concerning the loans made to the Carter family’s peanut warehouse operation. The article then discussed the loans in question, presented the justification for the appointment of a special counsel, and described Cur-ran’s background. The article concluded by briefly describing the history of the grand jury probe and by noting that the grand jury was thought to have completed its investigation three weeks previously of all matters except the warehouse loans. Appearing in the New York Times on March 21, 1979, the third article repeated substantially the same information as the article in the Atlanta Journal on March 20, 1979, with some elaboration of details. It reported the appointment of Curran as a special counsel to investigate the National Bank of Georgia loan to the Carter peanut business, it revealed that a field team of Justice Department prosecuting attorneys had recommended that" } ]

[ { "docid": "23527386", "title": "", "text": "would also require courts to apply the withdrawal, pro rata, and increased price provisions of section 78n(d)(5)-(7) to ordinary stock purchases, a difficult if not impossible task. The fact that several of Curtiss-Wright’s purchases were negotiated directly with financial institutions lends no force to Kennecott’s contentions. See Financial General Bankshares, Inc. v. Lance, [Current Binder] Fed.Sec.L.Rep. (CCH) 196,403 at 93,429 (D.D.C. Apr. 27, 1978); Nachman Corp. v. Halfred, Inc., [1973-1974 Transfer Binder] Fed.Sec.L.Rep. (CCH) 194,455 at 95,590 (N.D.Ill. Jul. 13, 1973); 1 A. Bromberg, Securities Law 6.3(333) (1969); cf. Contreras v. Tweedy, Browne & Knapp, 76 F.R.D. 39, 44-45 (S.D.N.Y.1977). If this Court is to opt for an interpretation of “tender offer” that differs from its conventional meaning, this is not the case in which to do it. DISPOSITION The portion of the district court’s judgment that dismissed Kennecott’s claims under the Williams Act is affirmed. The portion that found a violation of section 8 of the Clayton Act is reversed, and Kenne-cott’s claim based on such alleged violation is dismissed. The portion that found a violation of section 7 of the Clayton Act is reversed, and the matter is remanded to the district court for a new trial on this issue. Finally the district court is directed to void the 1978 annual Kennecott meeting in whole or appropriate part and order that a new election of directors be held promptly with a proper resolicitation of proxies. Costs of this appeal are awarded to appellant, Curtiss-Wright. . Securities Exchange Act of 1934, § 13(d)(1), 15 U.S.C. § 78m(d)(l). . The Utah proceedings were based upon alleged violations of the Utah Take-Over Disclosure Act. On April 3, 1978, the state’s action was dismissed for lack of personal jurisdiction over Curtiss-Wright, and that decision was affirmed by the Utah Supreme Court on April 5, 1978. Because Utah authorities persisted thereafter in their efforts to restrain Curtiss-Wright, and the district court below perceived a possible conflict between the state proceedings and its own jurisdiction under the federal Securities Exchange Act, it issued a preliminary injunction against further state activity. That order has not" }, { "docid": "16583365", "title": "", "text": "had not substantially prevailed. For the reasons stated herein, the judgment of the district court is-AFFIRMED. . The controversy has spurred a significant amount of litigation. See Federal Election Commission v. Lance, 635 F.2d 1132 (5th Cir.) (en banc), cert. denied, 453 U.S. 917, 101 S.Ct. 3151, 69 L.Ed.2d 999 (1981); In re Grand Jury Investigation, 610 F.2d 202 (5th Cir. 1981); In re T. Bertram Lance, 610 F.2d 228 (5th Cir. 1980); Securities & Exchange Comm. v. The National Bank of Georgia, et al, Fed.Sec.L.Rep. (CCH) ¶ 96,402 (N.D.Ga.1978); Financial General Bankshares, Inc. v. Lance, 80 F.R.D. 22, Fed.Sec.L.Rep. (CCH) ¶ 96,403 (D.D.C.1978). . The injunction was entered by consent of the parties. Securities & Exchange Commission v. The National Bank of Georgia, et al., supra, Fed.Sec.L.Rep. (CCH) ¶ 96,402. . Section 7(A), 5 U.S.C.A. § 552(b)(7)(A), exempts from disclosure “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings ... ”. . The Attorney General of the United States appointed Paul J. Curran Special Counsel with the “authority for investigating and prosecuting any offenses against the United States arising from financial transactions between the Carter Warehouse and the National Bank of Georgia. . . . ” The Special Counsel notified the SEC that the documents obtained during the investigation into Bert Lance and NBG should not be released under the FOIA pending review by the Special Counsel’s staff. . The district court also denied plaintiff’s motion for summary judgment. The court noted that the motion contested the SEC’s right to invoke exemption 7(A) on behalf of the Special Counsel. Since the exemption had been withdrawn, the court concluded that plaintiff’s motion was without merit. . Section 4, 5 U.S.C.A. § 552(b)(4), exempts from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential... . Section 5, 5 U.S.C.A. § 552(b)(5), exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency...”." }, { "docid": "16645518", "title": "", "text": "made as to whether the attachments are exempt from disclosure under section (b)(7)(C). On remand, it may be appropriate for the District Court to “examine the contents of [the attachments] in camera to determine whether such records or any part thereof shall be withheld” under section (b)(7)(C). Such in camera inspection should serve to avoid any further disputes or delays in this litigation. V. CONCLUSION The judgment of the District Court is reversed as to the FBI “name check” summaries. The District Court is hereby instructed to require appellee to release all of the “name check” summaries heretofore withheld pursuant to a claimed exemption under section (b)(7)(C) of the FOIA. As to the “attachment” documents, the case is remanded to the District Court for further proceedings consistent with this opinion. So ordered. . 5 U.S.C. § 552 (1976). . 5 U.S.C. § 552(b)(1). Exemption 1 authorizes withholding of documents that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” . 5 U.S.C. § 552(b)(7)(C). Exemption (7)(C) authorizes withholding of documents that are “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... constitute an unwarranted invasion of personal privacy. ...” . 5 U.S.C. § 552(b)(7)(D). Exemption (7)(D) authorizes withholding of documents that are “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source. . . . ” . Petitioner no longer challenges the FBI’s claimed exemptions under § (b)(1) and § (7)(D). Petitioner’s brief at 10. . Petitioner’s appendix (App.) at 73. These rulings appeared in an Order of the District Court which was" }, { "docid": "16583366", "title": "", "text": "appointed Paul J. Curran Special Counsel with the “authority for investigating and prosecuting any offenses against the United States arising from financial transactions between the Carter Warehouse and the National Bank of Georgia. . . . ” The Special Counsel notified the SEC that the documents obtained during the investigation into Bert Lance and NBG should not be released under the FOIA pending review by the Special Counsel’s staff. . The district court also denied plaintiff’s motion for summary judgment. The court noted that the motion contested the SEC’s right to invoke exemption 7(A) on behalf of the Special Counsel. Since the exemption had been withdrawn, the court concluded that plaintiff’s motion was without merit. . Section 4, 5 U.S.C.A. § 552(b)(4), exempts from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential... . Section 5, 5 U.S.C.A. § 552(b)(5), exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency...”. . Section 7(C), 5 U.S.C.A. § 552(b)(7)(C), exempts from disclosure “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy ... . A district court has the option of reviewing the records in camera, 5 U.S.C.A. § 552(a)(4)(B), or requiring the federal agency to prepare an index of the documents. Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The index must include (1) an adequate description of the withheld document and (2) the particular exemption invoked to justify nondisclosure coupled with a detailed explanation for its use. Founding Church of Scientology, etc. v. Bell, 603 F.2d 945, 949 (D.C.Cir.1979). . Plaintiff also claims that the SEC waived the right to invoke exemption 7(A) (investigatory records) on behalf of the Justice Department by failing to raise the issue in the first motion for summary judgment. The SEC did raise exemption 7(A) in the first motion, but only" }, { "docid": "23279528", "title": "", "text": "district court’s conclusion that the 700 pages which the IRS withheld were exempt from disclosure and that Lewis was therefore not entitled to a Vaughn index is clearly erroneous. The district court found that the documents which Lewis sought fell within two exemptions to FOIA, 5 U.S.C. §§ 552(b)(3)(B) (Exemption 3) and 552(b)(7)(A) (Exemption 7(A)). The district court therefore denied Lewis’ request for disclosure and for a Vaughn index. We find no clear .error in the district court’s ruling that Exemption 7(A) applies. Therefore, we affirm the judgment of the district court denying Lewis a Vaughn index. The applicable portion of Exemption 7(A) exempts from disclosure “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... interfere with enforcement proceedings.” 29 U.S.C. § 552(b)(7)(A). In order to sustain its burden of proof, the IRS must establish that it is a law enforcement agency, that the withheld documents were investigatory records compiled for law enforcement purposes, and that disclosure of those documents would interfere with pending enforcement proceedings. See FBI v. Abramson, 456 U.S. 615, 622, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376 (1982); Scientology, 611 F.2d at 748 (discussing standards applicable to Exemption 7(D), section 552(b)(7)(D)); Barney v. IRS, 618 F.2d 1268, 1272-73 (8th Cir.1980) (per curiam) (applying Exemption 7(A)). The IRS has the requisite law enforcement mandate and the affidavits presented in this case establish a rational nexus between enforcement of a federal law and the documents for which the exemption is claimed. Cf. Binion v. United States Dep’t of Justice, 695 F.2d 1189, 1194 (9th Cir.1983) (discussing the applicability of these standards to the FBI); Scientology, 611 F.2d at 748 (setting forth standards). Moreover, the affidavits of the IRS agents stated that the IRS generated the withheld pages of the documents during the course of an ongoing criminal tax investigation of Lewis, demonstrating that the IRS “had a purpose falling within its sphere of enforcement authority in compiling the particular documents].” Scientology, 611 F.2d at 748. Lewis does not dispute these contentions; in fact, his letters specifically request" }, { "docid": "11685866", "title": "", "text": "SELYA, Circuit Judge. William J. Curran, plaintiff-appellant, complains of the district court’s grant of summary judgment in favor of the government in this suit under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The district court’s decision is reported at 640 F.Supp. 153 (D.Mass.1986) (Curran I). We affirm. I. We have recently made some general observations concerning the FOIA, which bear repeating at this juncture: [T]he statute manifests an overall “policy of broad disclosure of government documents to ensure an informed citizenry.” Doubts are customarily to be resolved in favor of openness. Yet that mandate, though sweeping, is far from absolute. In order to preserve certain vital government interests and to protect individuals where necessary, Congress promulgated a series of explicit exemptions from the revelatory norm. See 5 U.S.C. § 552(b)(1)-(9). “Federal agencies are required to release the requested information unless it falls within one of the nine statutory exemptions; in keeping with the general policy of disclosure these exemptions are narrowly construed.” The burden, of course, is on the withholder to establish the viability of an exemption. 5 U.S.C. § 552(a)(4)(B). Irons v. FBI, 811 F.2d 681, 685 (1st Cir.1987) (case citations omitted). In the case at bar, the defendant-appellee, the United States Department of Justice, invoked 5 U.S.C. § 552(b)(7)(A) to justify retention of certain records. At the time, the relevant text of Exemption 7(A) read as follows: This section [the FOIA] does not apply to * i(S $ * * $ (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings,____ 5 U.S.C. § 552(b)(7) (West Supp.1985). Under Exemption 7(A) — as with Exemption 7(D) — there is no room for judicial balancing: “[s]o long as one is dealing with ‘investigatory records compiled for law enforcement purposes,’ 5 U.S.C. § 552(b)(7), the inherent nature of the requested documents is irrelevant to the question of exemption.” Irons v. FBI, at 685. What matters is whether or not the information “would” (or, under FIRA, “could reasonably be expected to,” see ante n." }, { "docid": "16583349", "title": "", "text": "JOHNSON, Circuit Judge: We are asked to write what may be the final chapter in the controversy surrounding Bert Lance and the National Bank of Georgia (NBG). In 1979, plaintiff, attorney employed by Bert Lance, filed a request under the Freedom of Information Act, 5 U.S.C.A. § 552, for certain records in the possession of the Securities and Exchange Commission (SEC). The agency refused to release the records and plaintiff sought a de novo review of the request in federal district court. Although ordering the agency to release some of the records, the district court essentially upheld the agency’s decision. The court also concluded that the plaintiff had not substantially prevailed in the lawsuit and was therefore not entitled to an award of attorneys’ fees. Plaintiff appeals, seeking the release of additional documents and attorneys’ fees. I. In 1977 the SEC and Office of the Comptroller of the Currency (OCC) conducted an investigation into certain transactions among the NBG, the First National Bank of Calhoun (FNB) and Bert Lance. After completing the investigation, the two agencies sought and obtained injunctive relief against Lance and both banks. Shortly after the injunction was issued, plaintiff Chilivis filed, at the apparent behest of Bert Lance, an FOIA request for all “depositions, statements, documents and memoranda” obtained during the SEC’s investigation. The SEC denied the request, reasoning that the documents were relevant to other ongoing investigations and therefore exempt from production under Section 7(A) of the FOIA. Plaintiff brought suit in district court seeking the release of the records. The SEC responded to the complaint with a motion to dismiss and/or motion for summary judgment. The agency asserted that the records were germane to an investigation by the Special Counsel into the relationship between the NBG and Carter Warehouse and not subject to disclosure. Plaintiff filed a cross-motion for summary judgment contending that the records were not necessary to the Special Counsel’s investigation. Before the district court could determine the merits of either motion, the SEC was notified that the Special Counsel no longer had any need for the records. The Justice Department, however," }, { "docid": "16682978", "title": "", "text": "accepted the compromise, id. at 40413; the House accepted the compromise with technical amendments, id. at 40880, 40886; the Senate concurred in the amendments, id. at 40730; and the Privacy Act was presented to the President and was signed. PREGERSON, Circuit Judge (concurring): As I read the district court’s Memorandum and Order Granting Motion for Summary Judgment, Judge Schwartz correctly treated the investigatory records exemptions found in the Freedom of Information Act (FOIA) and the Privacy Act as coextensive. In my view, a coextensive reading of these exemptions is required to effectuate the purposes of both acts. Both the FOIA and the Privacy Act contain provisions under which a party may gain access to records maintained by agencies of the United States. Under the FOIA, an individual may gain access to nonexempt records, whether or not the records pertain to him or her. Under the Privacy Act, an individual may gain access to nonexempt records only if they concern him or her. Thus, an individual may obtain documents pertaining to him or her under both acts. It makes good sense, then, that parties should have the same access to records pertaining to them under the Privacy Act as they would have under the FOIA. In this way, the disclosure purpose underlying both acts may be effectuated. Under the FOIA, 5 U.S.C. § 552, agencies must release records to a requesting party unless those records fall within one of nine exemptions to disclosure set forth in § 552(b). The exemption at issue here is the investigatory records exemption contained in subsection (b)(7). That provision exempts investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would: (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence" }, { "docid": "16583350", "title": "", "text": "agencies sought and obtained injunctive relief against Lance and both banks. Shortly after the injunction was issued, plaintiff Chilivis filed, at the apparent behest of Bert Lance, an FOIA request for all “depositions, statements, documents and memoranda” obtained during the SEC’s investigation. The SEC denied the request, reasoning that the documents were relevant to other ongoing investigations and therefore exempt from production under Section 7(A) of the FOIA. Plaintiff brought suit in district court seeking the release of the records. The SEC responded to the complaint with a motion to dismiss and/or motion for summary judgment. The agency asserted that the records were germane to an investigation by the Special Counsel into the relationship between the NBG and Carter Warehouse and not subject to disclosure. Plaintiff filed a cross-motion for summary judgment contending that the records were not necessary to the Special Counsel’s investigation. Before the district court could determine the merits of either motion, the SEC was notified that the Special Counsel no longer had any need for the records. The Justice Department, however, promptly informed the agency that a grand jury had been impaneled to inquire into Bert Lance’s affairs and requested that the SEC not release any “witness statements, transcripts of testimony and exhibits” during the pend-ency of the investigation. As a result, the SEC filed a superseding motion this time alleging that witness statements, transcripts and exhibits were exempt under Section 7(A) from disclosure as investigatory records. The SEC also sought guidance from the court concerning the agency’s authority to return to the OCC a number of documents included in plaintiff’s FOIA request. In November 1979, the district court granted the SEC’s motion and instructed the agency to “honor the request of the Comptroller for the return of the documents.” A few months after the district court’s order, Bert Lance was tried and was either acquitted or granted a mistrial as to all criminal charges. The Justice Department terminated the investigation and returned the witness statements, transcripts and exhibits to the SEC. Noting that the Justice Department investigation had ceased, plaintiff moved the district court to" }, { "docid": "16583363", "title": "", "text": "Dev., 471 F.Supp. 1074, 1081 (D.Mass.1979), affirmed, 649 F.2d 4 (1st Cir. 1981). Disclosure of communications to others in violation of an agency’s regulations may also result in waiver. Shermco Industries, supra, 613 F.2d at 1320. Plaintiff has not alleged that the SEC disclosed the documents to nonfederal agencies or private individuals. Nor has he contended that the SEC disclosed documents in violation of agency regulations. Accordingly, plaintiff has not established a case for the waiver of exemption 5. IV. The final issue concerns the district court’s refusal to award plaintiff attorneys’ fees. The FOIA authorizes a court to award attorneys’ fees if a plaintiff “substantially prevailed” in the lawsuit. 5 U.S.C.A. § 552(a)(4)(E). To substantially prevail, a plaintiff must establish that the lawsuit “could reasonably be regarded as necessary to obtain the information and that the action had a substantial causative effect on the delivery of the information.” Lovell v. Alderete, 630 F.2d 428, 432 (5th Cir. 1980); accord, Cazalas v. United States Dept. of Justice, 660 F.2d 612, 619 (5th Cir. 1981). A district court’s determination that a party did not substantially prevail will only be reversed if clearly erroneous. Cox v. United States Department of Justice, 601 F.2d 1, 6 (D.C.Cir.1979). The record reveals that the SEC failed to release a large number of documents until after plaintiff initiated judicial proceedings. Nonetheless, such a factor does not conclusively establish that plaintiff substantially prevailed. Lovell v. Alderete, supra, 630 F.2d at 432. Instead, plaintiff must establish that the lawsuit provided the necessary impetus for disclosure. Plaintiff has not met this burden. The substantial majority of documents released by the SEC resulted not from the lawsuit but from the Justice Department’s termination of the Bert Lance investigation and the agency’s correct perception that the documents were no longer exempt as investigatory records. Only those documents ordered released by the district court can fairly be attributed to the lawsuit. The records actually ordered disclosed by the district court amounted to an insignificant portion of the documents sought in the FOIA request. Thus the district court correctly concluded that the plaintiff" }, { "docid": "11662192", "title": "", "text": "redacted. The redactions were described by the government as necessary to preserve the confidentiality of the identities of confidential sources, the name of an FBI special agent, and matters of personal privacy. On March 13, 1979, plaintiff filed this action seeking release of the withheld information. The magistrate granted plaintiff’s motion for summary judgment and was affirmed in all respects by the district court. This appeal followed. DISCUSSION The pertinent provision of the FOIA (“Exemption 7”) exempts from disclosure: (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel. 5 U.S.C. § 552(b)(7) (1976). After the FBI sought to withhold the information in question under subcategories (C) and (D), the magistrate determined that the documents were not “compiled for law enforcement purposes” and thus were outside the scope of Exemption 7 entirely. This conclusion was founded upon: (i) the magistrate’s factual determination that, while the Panthers were a reasonable subject of a criminal investigation, the Coalition “just could not have been credibly regarded as posing any threat whatsoever of ... any ... criminal offense”; and (ii) his legal conclusion that Exemption 7 applies only when the information sought under the FOIA was collected as a result of a plausible concern on the agency’s part that the subject of the investigation might somehow be involved in past or future violations of federal law. We disagree with the magistrate’s legal conclusion. We conclude that Congress intended that subcategories (A)(F) protect from disclosure the described information whether or not" }, { "docid": "5739925", "title": "", "text": "to disclose the fifteen documents, arguing that they are exempt from disclosure under exemptions (7)(A), (7)(C), and (7)(D), and Mr. Alirez appeals from the district court’s denial of his request for attorneys’ fees. The fifteen documents have been delivered to this court under seal. We first must decide whether the district court was correct in its determination that these documents are not exempt from disclosure under the FOIA. The basic policy of the FOIA is in favor of disclosure. Department of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1598-99, 48 L.Ed.2d 11 (1976). The FOIA is to be broadly construed in favor of disclosure, id. at 366, 96 S.Ct. at 1601, and, unless requested material in the possession of a federal agency falls within one of the statutory exemptions structured to protect specified confidentiality and privacy interests, it must be made available on demand to any member of the general public. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220-21, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159 (1978). These statutory exemptions are to be narrowly construed with all doubts resolved in favor of disclosure, Department of the Air Force v. Rose, 425 U.S. at 361-62, 96 S.Ct. at 1599; EPA v. Mink, 410 U.S. 73, 79-80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973), and the federal agency bears the burden of justifying nondisclosure. 5 U.S.C. § 552(a)(4)(B); Campbell v. United States Civil Service Commission, 539 F.2d 58, 61 (10th Cir. 1976). The exemption provisions relied upon by the Board to justify non-disclosure of the fifteen documents state: (b) This section [5 U.S.C. 552, the FOIA] does not apply to matters that are— (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, ... (C) constitute an unwarranted invasion of personal privacy, [or] (D) disclose the identity of a confidential source .... It is not disputed that the requested documents are “investigatory records compiled for law enforcement purposes” within the meaning of the statute. We first consider, then," }, { "docid": "1713956", "title": "", "text": "information concerning Kuehnert in Document 1, we disagree. Here the FBI submitted an affidavit and index with justifications for nondisclosure sufficiently detailed to determine the nature of material withheld and the applicability of FOIA exemptions. Under the circumstances, the district court did not err in failing to order a more detailed index or an in camera inspection of material withheld. See Barney v. IRS, 618 F.2d 1268 at 1271-1274, No. 79-1488, (8th Cir. 1980); Cox v. United States Department of Justice, supra, 576 F.2d at 1312. Accordingly, we remand the case for the limited purpose set forth above. In all other respects we affirm the district court judgment. . The FBI compiled an index of documents covered by Kuehnert’s FOIA request. See text infra. That index lists fourteen documents. Document 2, however, is a duplicate of Document 4. In discussing specific documents we refer to them as numbered in the FBI index. . The Government submitted the affidavit of FBI Special Agent John H. Hawkes. . FOIA exemption 7(D), 5 U.S.C. § 552(b)(7)(D) (1976), provides: (b) This section does not apply to matters that are— ****** (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would * * * (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, ; confidential information furnished only by the confidential source * * *. In the present case the FBI withheld confidential source information pursuant to the first clause of exemption 7(D) exclusively. . FOIA exemption 7(C), 5 U.S.C. § 552(b)(7)(C) (1976), provides: (b) This section does not apply to matters that are— ****** (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would * * * (C) constitute an unwarranted invasion of personal privacy * * *. . These third parties were either interviewed by the FBI or asserted to be “of" }, { "docid": "16793190", "title": "", "text": "scope of their demands) and by the government (to effect due and expeditious compliance with what remained of the FOIA requests). When roughly half of the documents had been delivered (some in excised form), the appellees noted that, although the disclosure included contemporaneous reports of FBI interviews prepared by Bureau agents, the names of the interviewees and any information from which their identities could be deduced was often deleted from the reports. In pursuing this course of redaction before release, the FBI relied upon 5 U.S.C. §§ 552(b)(7)(C) and (D). The relevant text of these exemptions at the time the doctored documents were delivered read as follows: This section [the FOIA] does not apply to ****** (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy, [or] (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, ... 5 U.S.C. § 552(b)(7) (West Supp.1985). The requestors were not so easily to be denied. On November 26,1985, they asked the district court for partial summary judgment rejecting the claimed applicability of the specified exemptions and ordering the defendants (appellants before us) to yield the withheld material. After some intermediate skirmishing, irrelevant for our purposes, the district court, in an ore terms bench decision, invoked what can aptly be described as a “per se potential witness” rule: it held that the protection for confidential sources afforded by Exemption 7(D) did not warrant masking the identities of informants who had agreed, expressly or by fair implication, to testify if necessary in the Smith Act prosecutions. And, after balancing the generic privacy interests of the informers against the requestors’ authentic needs and the perceptible public benefits associated with disclosure, the district judge held that Exemption 7(C) was similarly unavailing. He therefore granted the motion for partial summary" }, { "docid": "16682979", "title": "", "text": "acts. It makes good sense, then, that parties should have the same access to records pertaining to them under the Privacy Act as they would have under the FOIA. In this way, the disclosure purpose underlying both acts may be effectuated. Under the FOIA, 5 U.S.C. § 552, agencies must release records to a requesting party unless those records fall within one of nine exemptions to disclosure set forth in § 552(b). The exemption at issue here is the investigatory records exemption contained in subsection (b)(7). That provision exempts investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would: (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel . § 552(b)(7). Under the FOIA, when an agency refuses to disclose requested documents by asserting the investigatory records exemption, the requesting party may challenge the claimed exemption in district court. The court may then examine the documents in camera to determine if the (b)(7) exemption does indeed apply. § 552(a)(4)(B). The agency bears the burden of demonstrating both that the documents are investigatory records compiled for law enforcement purposes and that at least one of the justifications for nondisclosure spelled out in (b)(7) applies. The scope of the investigatory records exemptions in the FOIA, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, is basically the same. Subsection (j)(2)(B) of the Privacy Act generally exempts from disclosure any system of records maintained [B]y an agency . . . which performs as its principal function any activity pertaining to the enforcement of criminal laws .." }, { "docid": "15112620", "title": "", "text": "the parties had struck this agreement, WSPF was finally terminated and custody of the documents was transferred to the National Archives and Records Service (NARS). NARS completed the review of the closing memoranda, including those of the Townhouse file, the I.T.T. file and the Hughes-Rebozo file which had previously been reviewed by WSPF. As a result of this review, a substantial amount of information not previously made available was released. As to the information still being withheld, NARS filed affidavits, detailed Vaughn indices and copies of the redacted documents with the district court. NARS moved for summary judgment on March 3, 1978. In a thorough memorandum, the district court, treating the motion as one for partial summary judgment, ordered the release of certain documents to FCG but upheld the claimed exemptions as to the majority of the information. Fund for Constitutional Government v. National Archives and Records Service, 485 F.Supp. 1 (D.D.C.1978). Subsequently, the district court ordered the entry of final judgment while retaining jurisdiction to monitor compliance with its prior orders. J.A. at 135-36. II. DISCUSSION A. Exemptions Pursuant to 5 U.S.C. § 552(b)(7)(C) NARS contends, and the district court concluded, that a substantial amount of information contained in these files is properly exempt from disclosure under FOIA Exemption 7(C). That section exempts from the FOIA mandatory disclosure requirements: [Mjatters that are— (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy .... 5 U.S.C. § 552(b)(7)(C). FCG apparently concedes for the purpose of this appeal that the information in question is contained in “investigatory records compiled for law enforcement purposes.” The district court upheld the invocation of Exemption 7(C) for the following three general categories of information: (1) information which would reflect investigations of allegations of possible wrongdoing by individuals who were neither indicted nor prosecuted; (2) information which revealed facts pertaining to individuals who were not the targets of investigation; and (3) information which would reveal the identity of a confidential source. While the dominant objective of the" }, { "docid": "2653529", "title": "", "text": "disclosure of nonexempt documents to “any person” without regard to the limitations on discovery by parties to civil or criminal litigation. 5 U.S.C. § 552(a)(3). The district court held that the documents were exempt under FOIA Subsection (b)(7), which exempts from disclosure “matters that are ... records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information[ ] could reasonably be expected to interfere with enforcement proceedings.” Although the district court concluded that disclosure would “jeopardize” the grand jury proceedings, it made no finding as to whether the records sought were “compiled for law enforcement purposes.” Such a finding is essential to a valid claim of exemption under Subsection (b)(7). Indeed, the judicial precedent relied upon by the district court, Hatcher v. United States Postal Service, 556 F.Supp. 331 (D.D.C. 1982), expressly distinguished between exempted documents created pursuant to a criminal investigation and discloseable documents created as a matter of routine, prior to and independent of the investigation. Id. at 334-35. In the instant case, the documents requested were generated by Agency independent of any investigation in the course of its routine monitoring of Corporation’s accounting procedures with regard to Corporation’s defense contracts. The records were compiled in 1978, seven years before the investigation began in 1985. They were thus not “compiled for law enforcement purposes” and are not exempted by Subsection (b)(7). The 1974 amendments to the FOIA make it clear that a governmental entity cannot withhold materials requested under the FOIA on the ground that materials that were not investigatory records when compiled have since acquired investigative significance. Originally, the FOIA exemption in question applied to “investigatory files.” In 1974, however, Congress substituted the word “records” for “files” to insure that documents produced in the routine course of government operations would not be withheld under Subsection (b)(7) merely because they had been commingled with investigative materials generated later in the course of a law enforcement proceeding. Robbins Tire & Rubber, 437 U.S. at 227-30, 98 S.Ct. at 2319-21; see also Abramson, 456 U.S. at 626-27, 102" }, { "docid": "16583364", "title": "", "text": "district court’s determination that a party did not substantially prevail will only be reversed if clearly erroneous. Cox v. United States Department of Justice, 601 F.2d 1, 6 (D.C.Cir.1979). The record reveals that the SEC failed to release a large number of documents until after plaintiff initiated judicial proceedings. Nonetheless, such a factor does not conclusively establish that plaintiff substantially prevailed. Lovell v. Alderete, supra, 630 F.2d at 432. Instead, plaintiff must establish that the lawsuit provided the necessary impetus for disclosure. Plaintiff has not met this burden. The substantial majority of documents released by the SEC resulted not from the lawsuit but from the Justice Department’s termination of the Bert Lance investigation and the agency’s correct perception that the documents were no longer exempt as investigatory records. Only those documents ordered released by the district court can fairly be attributed to the lawsuit. The records actually ordered disclosed by the district court amounted to an insignificant portion of the documents sought in the FOIA request. Thus the district court correctly concluded that the plaintiff had not substantially prevailed. For the reasons stated herein, the judgment of the district court is-AFFIRMED. . The controversy has spurred a significant amount of litigation. See Federal Election Commission v. Lance, 635 F.2d 1132 (5th Cir.) (en banc), cert. denied, 453 U.S. 917, 101 S.Ct. 3151, 69 L.Ed.2d 999 (1981); In re Grand Jury Investigation, 610 F.2d 202 (5th Cir. 1981); In re T. Bertram Lance, 610 F.2d 228 (5th Cir. 1980); Securities & Exchange Comm. v. The National Bank of Georgia, et al, Fed.Sec.L.Rep. (CCH) ¶ 96,402 (N.D.Ga.1978); Financial General Bankshares, Inc. v. Lance, 80 F.R.D. 22, Fed.Sec.L.Rep. (CCH) ¶ 96,403 (D.D.C.1978). . The injunction was entered by consent of the parties. Securities & Exchange Commission v. The National Bank of Georgia, et al., supra, Fed.Sec.L.Rep. (CCH) ¶ 96,402. . Section 7(A), 5 U.S.C.A. § 552(b)(7)(A), exempts from disclosure “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings ... ”. . The Attorney General of the United States" }, { "docid": "16645519", "title": "", "text": "(B) are in fact properly classified pursuant to such Executive order.” . 5 U.S.C. § 552(b)(7)(C). Exemption (7)(C) authorizes withholding of documents that are “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... constitute an unwarranted invasion of personal privacy. ...” . 5 U.S.C. § 552(b)(7)(D). Exemption (7)(D) authorizes withholding of documents that are “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source. . . . ” . Petitioner no longer challenges the FBI’s claimed exemptions under § (b)(1) and § (7)(D). Petitioner’s brief at 10. . Petitioner’s appendix (App.) at 73. These rulings appeared in an Order of the District Court which was issued on November 30, 1979. App. at 72-73. . App. at 73. . The FBI no longer asserts Exemption (b)(6), 5 U.S.C. § 552(b)(6), as a justification for nondisclosure. This exemption protects from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” . The reference to 28 C.F.R. § 16.3(b) appears in the Department of Justice’s regulations pertaining to Production or Disclosure of Material or Information under the FOIA. 28 C.F.R. § 16.1 (1979). 28 C.F.R. § 16.3(b) provides that: (b) Request should reasonably describe the records sought. A request for access to records should sufficiently identify the records requested to enable Department personnel to locate them with a reasonable amount of effort. Where possible, specific information regarding dates, titles, file designations, and other information which may help identify the records should be supplied by the requester. If the request relates to a matter in pending litigation, the court and its location should be identified. . See notes 2, 3 and 4, supra." }, { "docid": "11662191", "title": "", "text": "to raise money for the legal defense of the Panthers and to carry on the work of the Coalition in the Panthers’ behalf. The membership of the Coalition consisted of groups ranging from the Students for a Democratic Society to various community organizations affiliated with Yale University. The FBI began an investigation of the Coalition in October, 1969. It closed its file on May 20, 1971, concluding that the Coalition “[mjembership is still sympathetic to the Panther cause, but they have made no actual attempt to gain membership in the [Black Panther Party].” On October 20, 1977, the plaintiff submitted an FOIA request to the FBI seeking disclosure of all documents concerning the Coalition. The FBI released 94 documents totaling 281 pages. Most of the documents released were from a file in the FBI’s New Haven office captioned “The Coalition for the Defense of the Panthers.” Some of the documents were copies of materials in the FBI’s main file on the Black Panther Party. Although most documents were released in their entirety, some portions were redacted. The redactions were described by the government as necessary to preserve the confidentiality of the identities of confidential sources, the name of an FBI special agent, and matters of personal privacy. On March 13, 1979, plaintiff filed this action seeking release of the withheld information. The magistrate granted plaintiff’s motion for summary judgment and was affirmed in all respects by the district court. This appeal followed. DISCUSSION The pertinent provision of the FOIA (“Exemption 7”) exempts from disclosure: (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source," } ]

[ { "docid": "2574426", "title": "", "text": "of the Sherman Act.” Although MRCA allows Sun “instantaneous” control over the wholesale price, the court found the type of control not different in kind or effect from Sun’s pre-1965 system in which wholesale prices could be varied by Sun more slowly. ■ Resale price maintenance is, in the absence of state fair trade legislation, a per se violation of the antitrust laws. Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 5. Ct. 259, 95 L.Ed. 219 (1951); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). But before this doctrine can come into play there must be resale price maintenance. The Supreme Court eases have involved situations in which the attempt to set retail prices was clear. In Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964), upon which Butera relies, Union Oil had signed an agreement with the retailer containing the latter’s promise to resell at the price set by Union Oil. In Kiefer-Stewart a refusal to sell at a fixed price was met by a concerted refusal to deal. In Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968) and United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), the retailer was confronted with minimum or maximum prices and harassed by his supplier and others if he stepped out of line. Taken together, these cases suggest that a case of illegal resale price maintenance is made out when a price is announced and some course of action is undertaken or threatened contingent on the willingness or unwillingness of the retailer to adopt the price. The action need not necessarily fit under the rubric “coercion”, but it must involve making a meaningful event depend on compliance or non-compliance with the “suggested” or stated price. The dealers in Parke, Davis and Albrecht were told that the harassment directed against them would end as soon as they acceded to the manufacturer’s price desires. The" } ]

[ { "docid": "21311154", "title": "", "text": "deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell. * * * ” d “ * * * In the absence of any purpose to create or maintain a monopoly * * *» the Sherman Act does not encroach upon this right. The conceptual difficulty which inheres in this seemingly forthright line drawing process is the element of agreement which attends a seller’s adherence to a manufacturer’s schedule of resale prices. In the face of an advance announcement by the manufacturer that price cutters will be denied supply, a seller’s compliance with prices suggested strongly infers a tacit or implied resale price maintenance agreement. The inference of agreement is no less present where the seller’s acquiescence to prices suggested manifests a response to whatever inducements or coercive pressures result from the prior announcement and the consequent threatened deprivation of the line of goods in the event of non-compliance. But for the protection afforded by the Colgate refinement of the common law right of traders to exercise the utmost discretion in business affairs, adherence by retailers to suggested prices, prompted by previously announced conditions of refusal to deal, would in all likelihood result in a finding of underlying agreements to fix prices, and consequently run afoul of § 1 of Sherman. From a practical point of view, assuming lawful resort to the sanction of refusal to deal and consequent collective adherence by dealers to the prices specified, the resulting economic restraint is functionally indistinguishable from the anticompetitive situation which arises from a purely horizontal price fixing conspiracy among retailers — a trade restriction clearly in violation of the Sherman Act. The Supreme Court has long been aware of these troublesome aspects of the Colgate rule; subsequent cases have steadily encroached upon the protection previously thought to be secured by the doctrine. The most recent example of this restrictive trend is Parke, Davis; Colgate is therein interpreted to confine immunity from antitrust liability to sellers whose actions do not exceed “ * * * a simple refusal to sell to customers who will" }, { "docid": "15477927", "title": "", "text": "resale prices. Filco, 709 F.2d at 1266. The Court takes as true plaintiffs’ allegations that they were coerced into signing the supply agreement for fear of losing their station. This, however, does not establish the first element of the test, that they have been coerced into setting a certain retail price for their gasoline. Indeed, they have admitted that Rutledge does not dictate their prices. There is no evidence that he even suggests retail prices to them. Under the law of this circuit, actions of suppliers to influence resale prices are not illegal “unless they sufficiently induce avoidance of price competition.” General Cinema Corp. v. Buena Vista Distribution, 681 F.2d 594, 597 (9th Cir.1982). Thus, claims of vertical price-fixing have been rejected where resale prices are not dictated. Id.; Westinghouse Electric, 523 F.2d at 675-76; 49er Chevrolet, 803 F.2d at 1468. Courts also have refused to find vertical price-fixing where only wholesale prices are fixed by the supplier. For example, in Butera v. Sun Oil Co., Inc., 496 F.2d 434 (1st Cir.1974), cited with approval in Filco, the court rejected the plaintiff/retailer’s price-fixing claims arising out of Sun Oil’s wholesale price maintenance system, concluding: [A] producer’s tight control over its wholesale prices does not become resale price maintenance merely because retail outlets to which it sells, being highly competitive and selling at low margins, are sensitive to every change in wholesale prices. The decision as to what margin to use[,] when to change it, and consequently what retail price to charge remains [the retailer’s] and we agree that such economic impact as follows from Sun’s tight control of its own wholesale pricing is not a Sherman Act violation. Id. at 437-38. The Ninth Circuit similarly has held that section 1 is not violated where only wholesale prices are fixed and the plaintiffs are not bound to sell to customers at prices specified by the defendant. Mesirow v. Pepperidge Farm, Inc., 703 F.2d 339 (9th Cir.1983), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93, see also American Telephone & Telegraph Co. v. Delta Communications Corp., 408 F.Supp. 1075" }, { "docid": "22241506", "title": "", "text": "retailer’s distribution network. See Overstreet 31; 8 P. Areeda & H. Hovenkamp, Antitrust Law 47 (2d ed. 2004) (hereinafter Areeda & Hovenkamp); cf. Toys “R” Us, Inc. v. FTC, 221 F. 3d 928, 937-938 (CA7 2000). A manufacturer with market power, by comparison, might use resale price maintenance to give retailers an incentive not to sell the products of smaller rivals or new entrants. See, e.g., Marvel 366-368. As should be evident, the potential anticompetitive consequences of vertical price restraints must not be ignored or underestimated. C Notwithstanding the risks of unlawful conduct, it cannot be stated with any degree of confidence that resale price maintenance “always or almost always tend[s] to restrict competition and decrease output.” Business Electronics, supra, at 723 (internal quotation marks omitted). Vertical agreements establishing minimum resale prices can have either procompetitive or anticompetitive effects, depending upon the circumstances in which they are formed. And although the empirical evidence on the topic is limited, it does not suggest efficient uses of the agreements are infrequent or hypothetical. See Overstreet 170; see also id., at 80 (noting that for the majority of enforcement actions brought by the Federal Trade Commission between 1965 and 1982, “the use of [resale price maintenance] was not likely motivated by collusive dealers who had successfully coerced their suppliers”); Ippolito 292 (reaching a similar conclusion). As the rule would proscribe a significant amount of procompetitive conduct, these agreements appear ill suited for per se condemnation. Respondent contends, nonetheless, that vertical price restraints should be per se unlawful because of the administrative convenience of per se rules. See, e. g., GTE Sylvania, supra, at 50, n. 16 (noting “per se rules tend to provide guidance to the business community and to minimize the burdens on litigants and the judicial system”). That argument sug gests per se illegality is the rule rather than the exception. This misinterprets our antitrust law. Per se rules may decrease administrative costs, but that is only part of the equation. Those rules can be counterproductive. They can increase the total cost of the antitrust system by prohibiting procompetitive conduct the" }, { "docid": "22241502", "title": "", "text": "labor that is often required in the distribution of products unknown to the consumer.” GTE Sylvania, supra, at 55; see Marvel & McCafferty 349 (noting that reliance on a retailer’s reputation “will decline as the manufacturer’s brand becomes better known, so that [resale price maintenance] may be particularly important as a competitive device for new entrants”). New products and new brands are essential to a dynamic economy, and if markets can be penetrated by using resale price maintenance there is a procompetitive effect. Resale price maintenance can also increase interbrand competition by encouraging retailer services that would not be provided even absent free riding. It may be difficult and inefficient for a manufacturer to make and enforce a contract with a retailer specifying the different services the retailer must perform. Offering the retailer a guaranteed margin and threatening termination if it does not live up to expectations may be the most efficient way to expand the manufacturer’s market share by inducing the retailer’s performance and allowing it to use its own initiative and experience in providing valuable services. See Mathewson & Winter, The Law and Economics of Resale Price Maintenance, 13 Rev. Indus. Org. 57,74-75 (1998) (hereinafter Mathewson & Winter); Klein & Murphy, Vertical Restraints as Contract Enforcement Mechanisms, 31 J. Law & Econ. 265, 295 (1988); see also Deneckere, Marvel, & Peck, Demand Uncertainty, Inventories, and Resale Price Maintenance, 111 Q. J. Econ. 885, 911 (1996) (noting that resale price maintenance may be beneficial to motivate retailers to stock adequate inventories of a manufacturer’s goods in the face of uncertain consumer demand). B While vertical agreements setting minimum resale prices can have procompetitive justifications, they may have anti-competitive effects in other cases; and unlawful price fixing, designed solely to obtain monopoly profits, is an ever-present temptation. Resale price maintenance may, for example, facilitate a manufacturer cartel. See Business Electronics, 485 U. S., at 725. An unlawful cartel will seek to discover if some manufacturers are undercutting the cartel’s fixed prices. Resale price maintenance could assist the cartel in identifying price-cutting manufacturers who benefit from the lower prices they offer." }, { "docid": "22241505", "title": "", "text": "maintenance); Hovenkamp 186 (suggesting that the retail druggists in Dr. Miles formed a cartel and used manufacturers to enforce it). A horizontal cartel among competing manufacturers or competing retailers that decreases output or reduces competition in order to increase price is, and ought to be, per se unlawful. See Texaco, 547 U. S., at 5; GTE Sylvania, 433 U. S., at 58, n. 28. To the extent a vertical agreement setting minimum resale prices is entered upon to facilitate either type of cartel, it, too, would need to be held unlawful under the rule of reason. This type of agreement may also be useful evidence for a plaintiff attempting to prove the existence of a horizontal cartel. Resale price maintenance, furthermore, can be abused by a powerful manufacturer or retailer. A dominant retailer, for example, might request resale price maintenance to forestall innovation in distribution that decreases costs. A manufacturer might consider it has little choice but to accommodate the retailer’s demands for vertical price restraints if the manufacturer believes it needs access to the retailer’s distribution network. See Overstreet 31; 8 P. Areeda & H. Hovenkamp, Antitrust Law 47 (2d ed. 2004) (hereinafter Areeda & Hovenkamp); cf. Toys “R” Us, Inc. v. FTC, 221 F. 3d 928, 937-938 (CA7 2000). A manufacturer with market power, by comparison, might use resale price maintenance to give retailers an incentive not to sell the products of smaller rivals or new entrants. See, e.g., Marvel 366-368. As should be evident, the potential anticompetitive consequences of vertical price restraints must not be ignored or underestimated. C Notwithstanding the risks of unlawful conduct, it cannot be stated with any degree of confidence that resale price maintenance “always or almost always tend[s] to restrict competition and decrease output.” Business Electronics, supra, at 723 (internal quotation marks omitted). Vertical agreements establishing minimum resale prices can have either procompetitive or anticompetitive effects, depending upon the circumstances in which they are formed. And although the empirical evidence on the topic is limited, it does not suggest efficient uses of the agreements are infrequent or hypothetical. See Overstreet 170; see" }, { "docid": "11001708", "title": "", "text": "free to acquiesce in the manufacturer’s demand in order to avoid termination.” Monsanto, 465 U.S. at 761, 104 S.Ct. at 1469. The fact that the retailer conformed to the manufacturer’s suggested price is not proof that the manufacturer unlawfully “agreed” with a retailer on the prices the retailer would charge. See id. at 764 n. 9, 104 S.Ct. at 1471 n. 9 (“The concept of a ‘meeting of the minds’ or ‘a common scheme’ in a distributor-termination case includes more than a showing that the distributor conformed to the suggested price.”); The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 1154 (9th Cir.1988); Isaksen v. Vermont Castings, Inc., 825 F.2d 1158, 1164 (7th Cir.1987), cert. denied, 486 U.S. 1005, 108 S.Ct. 1728, 100 L.Ed.2d 193 (1988). As Judge Posner has explained: [T]he mere fact of adherence to suggested retail prices does not establish agreement to adhere to them. If adherence alone could prove an agreement to adhere, the Colgate privilege — which allows a supplier to “coerce” the dealers’ adherence by threatening to cut him off if he doesn’t adhere, and which was strongly reaffirmed in Monsanto ... would be nugatory_ If a manufacturer distributes a price list, together with an announcement that he will cut off dealers who sell below the list prices, and dealers adhere to those prices because they don’t want to be cut off, there is a realistic sense in which the threat of termination has induced the dealers to agree not to cut prices — to agree, in other words, to fix prices. That is the argument against Colgate. Monsanto rejects it. Isaksen, 825 F.2d at 1164. The States’ case, therefore, would necessarily be risky, and, in any event, would require lengthy and expensive discovery and trial. As Judge Haight explained in approving the settlement in the Keds case, in words which are equally applicable here: In the case at bar, [the defendant] has contended from its inception that its suggested retail pricing policy, with only the most limited exceptions, constituted unilateral and consequently lawful conduct under Colgate and its progeny. Plaintiffs would have" }, { "docid": "22241511", "title": "", "text": "respondent’s position are far reaching. Many decisions a manufacturer makes and carries out through concerted action can lead to higher prices. A manufacturer might, for example, contract with different suppliers to obtain better inputs that improve product quality. Or it might hire an advertising agency to promote awareness of its goods. Yet no one would think these actions violate the Sherman Act because they lead to higher prices. The antitrust laws do not require manufacturers to produce generic goods that consumers do not know about or want. The manufacturer strives to improve its product quality or to promote its brand because it believes this conduct will lead to increased demand despite higher prices. The same can hold true for resale price maintenance. Resale price maintenance, it is true, does have economic dangers. If the rule of reason were to apply to vertical price restraints, courts would have to be diligent in eliminating their anticompetitive uses from, the market. This is a realistic objective, and certain factors are relevant to the inquiry. For example, the number of manufacturers that make use of the practice in a given industry can provide important instruction. When only a few manufacturers lacking market power adopt the practice, there is little likelihood it is facilitating a manufacturer cartel, for a cartel then can be undercut by rival manufacturers. See Overstreet 22; Bork 294. Likewise, a retailer cartel is unlikely when only a single manufacturer in a competitive market uses resale price maintenance. Interbrand competition would divert consumers to lower priced substitutes and eliminate any gains to retailers from their price-fixing agreement over a single brand. See Posner 172; Bork 292. Resale price maintenance should be subject to more careful scrutiny, by contrast, if many competing manufacturers adopt the practice. Cf. Scherer & Ross 558 (noting that “except when [resale price maintenance] spreads to cover the bulk of an industry’s output, depriving consumers of a meaningful choice between high-service and low-price outlets, most [resale price maintenance arrangements] are probably innocuous”); Easterbrook 162 (suggesting that “every one of the potentially-anticompetitive outcomes of vertical arrangements depends on the uniformity" }, { "docid": "9437897", "title": "", "text": "resale price maintenance agreements, because the retailers are free to select the price at which they sell); Sun Oil Co. v. Vickers Refining Co., 414 F.2d 383 (8th Cir.1969) (allowing a formula that geared the supplier’s price to competitive changes in the resale price level); Sun Oil Co. v. FTC, 294 F.2d 465; Swettlen v. Wagoner Gas & Oil, Inc., 373 F.Supp. 1022 (W.D.Pa.1974), aff’d mem. 511 F.2d 1395 (3d Cir.1975). Requiring Midwest to pass on the price break granted by Seagram does not by itself constitute the coercion or pressure to maintain resale prices condemned in the decisions finding per se violations. Such a requirement does not prohibit the wholesaler from making greater reductions in price than the discount provides. Nor does it force the wholesaler to accept the price break at all. Seagram’s guarantee of the gross margin of the wholesaler at 10y2% did not amount to control of Midwest’s wholesale prices or its distribution. Presumably Midwest is interested in maximizing profits, and would not offer a discounted price to a retailer unless it expected an increase in volume sufficient to offset the loss it would incur from lowering the price; presumably Midwest would discontinue the discount if increased volume were not realized. The record supports the trial court’s conclusion that Midwest retained control over its prices and over the distribution of Seagram’s brands. While Seagram undoubtedly expected that reduction in price by Midwest would allow large volume retailers to advertise a retail price sufficiently low to increase Seagram’s market penetration, the record supports the conclusion Seagram did not fix retail prices. The retailers maintained control over their own prices; even though they were offered incentives to encourage price cutting, they were not coerced into offering a particular price or punished if they did not. Cf. Lehrman v. Gulf Oil Corp., 464 F.2d at 40 (supplier may not bar recipient of price support from lowering price beyond amount of support); Butera v. Sun Oil Co., 496 F.2d at 437 (“a meaningful event [must] depend upon compliance or non-compliance with [supplier’s] ‘suggested’ or stated price”). The small retailers allege" }, { "docid": "15477926", "title": "", "text": "S.Ct. 811, 84 L.Ed. 1129 (1940). Vertical price-fixing is an agreement to fix resale prices to third parties. United States v. Parke, Davis & Co., 362 U.S. 29, 43, 80 S.Ct. 503, 511, 4 L.Ed.2d 505 (1960). Plaintiffs contend that Rutledge has engaged in horizontal price-fixing in his capacity as their competitor and in vertical price-fixing in his capacity as their supplier. Before the per se doctrine can be invoked under a theory of vertical price fixing, evidence of resale price maintenance must be present. Westinghouse Electric Corp. v. CX Processing Laboratories, Inc., 523 F.2d 668, 673 (9th Cir.1975). There can be no violation of section 1 where there is no evidence of any attempt by the antitrust defendant to dictate resale prices to its distributor nor evidence that the defendant intended to fix prices. Id. In order for plaintiffs to succeed on their claims of vertical price-fixing, they must establish (1) that Rutledge pressured them into maintaining prices at a certain level, and (2) that this coercion actually impinged upon their freedom to set resale prices. Filco, 709 F.2d at 1266. The Court takes as true plaintiffs’ allegations that they were coerced into signing the supply agreement for fear of losing their station. This, however, does not establish the first element of the test, that they have been coerced into setting a certain retail price for their gasoline. Indeed, they have admitted that Rutledge does not dictate their prices. There is no evidence that he even suggests retail prices to them. Under the law of this circuit, actions of suppliers to influence resale prices are not illegal “unless they sufficiently induce avoidance of price competition.” General Cinema Corp. v. Buena Vista Distribution, 681 F.2d 594, 597 (9th Cir.1982). Thus, claims of vertical price-fixing have been rejected where resale prices are not dictated. Id.; Westinghouse Electric, 523 F.2d at 675-76; 49er Chevrolet, 803 F.2d at 1468. Courts also have refused to find vertical price-fixing where only wholesale prices are fixed by the supplier. For example, in Butera v. Sun Oil Co., Inc., 496 F.2d 434 (1st Cir.1974), cited with approval" }, { "docid": "4063633", "title": "", "text": "eventually reveal little more than the simple agency relationship that the defendants presently claim, the plaintiff has already presented facts sufficient to suggest the possibility of a much more complex relationship. Faced with a material issue of fact as to the exact nature of the ties between the defendants, the Court cannot at this juncture determine the legal issue that they have raised here. 2. Unreasonable Restraint of Trade. The critical illegal restraint of trade alleged by Martin is a resale price maintenance scheme under which the distributors were allegedly told to sell to the supermarkets at the suggested price of $11.15. In Butera v. Sun Oil Co., Inc., 496 F.2d 434 (1st Cir.1974), the Court of Appeals for the First Circuit articulated the elements of an illegal scheme of resale price maintenance, since adopted by other circuits, by holding: [A] case of illegal resale price maintenance is made out when a price is announced and some course of action is undertaken or threatened contingent on the willingness or unwillingness of the retailer to adopt the price. The action need not necessarily fit under the rubric ‘coercion’, but it must involve making a meaningful event depend on compliance or non-compliance with the ‘suggested’ or stated price. Id. at 437 (footnotes omitted); see also Carlson Machine Tools, Inc. v. American Tool, Inc., 678 F.2d 1253, 1261 (5th Cir.1982); Yentsch v. Texaco, Inc., 630 F.2d 46, 53 (2d Cir.1980) (plaintiff must prove either an agreement to maintain prices or “the securing of actual adherence to prices by means beyond mere refusal to deal”). In this case, although Martin has not specifically alleged each of these elements, its complaint and affidavits together make a sufficiently strong showing to raise a genuine issue of fact as to the presence of each of them. The submissions suggest that Chipwieh and Premium communicated to both wholesalers and retailers what the suggested or recommended prices were to be at every level of the distribution system. In addition, the complaint contains the allegation that Chipwich’s sudden and apparently unannounced shift to direct sales to Pathmark and Shoprite was" }, { "docid": "22241512", "title": "", "text": "of manufacturers that make use of the practice in a given industry can provide important instruction. When only a few manufacturers lacking market power adopt the practice, there is little likelihood it is facilitating a manufacturer cartel, for a cartel then can be undercut by rival manufacturers. See Overstreet 22; Bork 294. Likewise, a retailer cartel is unlikely when only a single manufacturer in a competitive market uses resale price maintenance. Interbrand competition would divert consumers to lower priced substitutes and eliminate any gains to retailers from their price-fixing agreement over a single brand. See Posner 172; Bork 292. Resale price maintenance should be subject to more careful scrutiny, by contrast, if many competing manufacturers adopt the practice. Cf. Scherer & Ross 558 (noting that “except when [resale price maintenance] spreads to cover the bulk of an industry’s output, depriving consumers of a meaningful choice between high-service and low-price outlets, most [resale price maintenance arrangements] are probably innocuous”); Easterbrook 162 (suggesting that “every one of the potentially-anticompetitive outcomes of vertical arrangements depends on the uniformity of the practice”). The source of the restraint may also be an important consideration. If there is evidence retailers were the impetus for a vertical price restraint, there is a greater likelihood that the restraint facilitates a retailer cartel or supports a dominant, inefficient retailer. See Brief for William S. Comanor et al. as Amici Curiae 7-8. If, by contrast, a manufacturer adopted the policy independent of retailer pressure, the restraint is less likely to promote anticompetitive conduct. Cf. Posner 177 (“It makes all the difference whether minimum retail prices are imposed by the manufacturer in order to evoke point-of-sale services or by the dealers in order to obtain monopoly profits”). A manufacturer also has an incentive to protest inefficient retailer-induced price restraints because they can harm its competitive position. As a final matter, that a dominant manufacturer or retailer can abuse resale price maintenance for anticompetitive purposes may not be a serious concern unless the relevant entity has market power. If a retailer lacks market power, manufacturers likely can sell their goods through rival" }, { "docid": "22241504", "title": "", "text": "Resale price maintenance, furthermore, could discourage a manufacturer from cutting prices to retailers with the concomitant benefit of cheaper prices to consumers. See ibid,.; see also Posner 172; Overstreet 19-23. Vertical price restraints also “might be used to organize cartels at the retailer level.” Business Electronics, supra, at 725-726. A group of retailers might collude to fix prices to consumers and then compel a manufacturer to aid the unlawful arrangement with resale price maintenance. In that instance the manufacturer does not establish the practice to stimulate services or to promote its brand but to give inefficient retailers higher profits. Retailers with better distribution systems and lower cost structures would be prevented from charging lower prices by the agreement. See Posner 172; Overstreet 13-19. Historical examples suggest this possibility is a legitimate concern. See, e. g., Marvel & McCafferty, The Welfare Effects of Resale Price Maintenance, 28 J. Law & Econ. 363, 373 (1985) (hereinafter Marvel) (providing an example of the power of the National Association of Retail Druggists to compel manufacturers to use resale price maintenance); Hovenkamp 186 (suggesting that the retail druggists in Dr. Miles formed a cartel and used manufacturers to enforce it). A horizontal cartel among competing manufacturers or competing retailers that decreases output or reduces competition in order to increase price is, and ought to be, per se unlawful. See Texaco, 547 U. S., at 5; GTE Sylvania, 433 U. S., at 58, n. 28. To the extent a vertical agreement setting minimum resale prices is entered upon to facilitate either type of cartel, it, too, would need to be held unlawful under the rule of reason. This type of agreement may also be useful evidence for a plaintiff attempting to prove the existence of a horizontal cartel. Resale price maintenance, furthermore, can be abused by a powerful manufacturer or retailer. A dominant retailer, for example, might request resale price maintenance to forestall innovation in distribution that decreases costs. A manufacturer might consider it has little choice but to accommodate the retailer’s demands for vertical price restraints if the manufacturer believes it needs access to the" }, { "docid": "16083924", "title": "", "text": "took steps to pressure certain unwilling retailers into adhering to its resale price policy through the cooperation of its dealers and some of its retailers. The Court found that this joint action to maintain resale prices constituted a combination or conspiracy in restraint of trade. Although defendant’s conduct in the case before us may have been more than a simple refusal to deal, our case is clearly distinguishable from Parke, Davis in that no combination or conspiracy is alleged nor can any be implied. The facts in the other two cases, Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964) and Broussard v. Socony Mobil Oil Co., 350 F.2d 346 (5th Cir. 1965), are practically identical. In both, a resale price agreement was entered into between supplier and dealer. Subsequently the dealer reneged and the supplier terminated the lease. Unlike the present case, in Simpson there was evidence of a large scale price maintenance program maintained through written consignment agreements under which the supplier fixed the retail price of gasoline. The dealer would not abide by the price fixed thereunder and for that reason the supplier refused to renew the dealer’s lease. The Court held that resale price maintenance through this coercive type of consignment agreement violated Section 1 of the Sherman Act. The case turned on the existence of an agreement for resale price maintenance. Simpson, supra at 24. In the instant case there is no such agreement. Broussard, supra involved a situation where the dealer reduced his retail price of gasoline only after repeated insistence by the supplier. Finding that he could not make a living at the reduced price, the dealer raised it to its former level. The supplier again insisted upon a reduction in price and when the dealer refused, the supplier declined to renew the lease. The record in that case is much stronger for the dealer than in the instant one. In Broussard there was clear evidence that the supplier’s insistence that the retail price be reduced was part of a “marketing program”; also that at least one" }, { "docid": "15764274", "title": "", "text": "the latter’s promise to resell at the price set by Union Oil. In Kiefer-Stewart a refusal to sell at a fixed price was met by a concerted refusal to deal. In Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968) and United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), the retailer was confronted with minimum or maximum prices and harassed by his supplier and others if he stepped out of line. Taken together, these cases suggest that a case of illegal resale price maintenance is made out when a price is announced and some course of action is undertaken or threatened contingent on the willingness or unwillingness of the retailer to adopt the price. The action need not necessarily fit under the rubric “coercion”, but it must involve making a meaningful event depend on compliance or non-compliance with the ‘suggested’ or stated price. The dealers in Parke, Davis and Albrecht were told that the harassment directed against them would end as soon as they acceded to the manufacturer’s price desires. The cancellation of the lease in Simpson was a direct consequence of the refusal to charge the manufacturer’s desired price. The other cases adhere to the same pattern. Cf. Lehrman v. Gulf Oil Corp., 464 F.2d 26 (5th Cir.), cert. denied 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665 (1972); Bowen v. New York News, Inc., 366 F.Supp. 651 (S.D.N.Y.1973). Id. at 436-37 (footnotes omitted). See also Broussard v. Socony Mobil Oil Co., 350 F.2d 346 (5th Cir. 1965). Following this analysis, the First Circuit concluded that there was no resale price maintenance involved. We follow this same analysis to the same result here. Aladdin Oil has alleged that Texaco and Poweram Oil conspired to maintain resale prices. No announcement of prices has been shown. No “course of action [was] undertaken or threatened contingent on the willingness or unwillingness of [Aladdin Oil] to adopt the price.” 496 F.2d at 437. There was no “meaningful event [dependent] on compliance or non-compliance.” Id. Here Texaco refused to" }, { "docid": "14432295", "title": "", "text": "in reaching this conclusion. To be sure, in Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968), the Supreme Court held “that a vertical, maximum-price-fixing scheme was unlawful per se under § 1 of the Sherman Act because it threatened to inhibit vigorous competition by the dealers bound by it and because it threatened to become a minimum-price-fixing scheme.” Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 335, 110 S.Ct. 1884, 1889, 109 L.Ed.2d 333 (1990) (assuming, “arguendo, that Albrecht correctly held that vertical, maximum price fixing is subject to the per se rule”). Nevertheless, not all vertical arrangements affecting price constitute resale price maintenance agreements that violate § 1 of the Sherman Act. See AAA Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 705 F.2d 1203, 1205 (10th Cir.1982), cert. denied, 461 U.S. 919, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983). “The combination required under Section 1 must be demonstrated by proof of: (1) an express or implied agreement, or (2) the securing of actual adherence to prices by means beyond mere refusal to deal.” Belfiore v. New York Times Co., 654 F.Supp. 842, 851 (D.Conn.1986), aff'd, 826 F.2d 177, 181 (2d Cir.1987) (“ ‘[A] supplier may not use coercion on its retail outlets to achieve resale price maintenance.”’ (quoting Simpson v. Union Oil Co., 377 U.S. 13, 17, 84 S.Ct. 1051, 1054, 12 L.Ed.2d 98 (1964))), cert. denied, 484 U.S. 1067, 108 S.Ct. 1030, 98 L.Ed.2d 994 (1988); accord Yentsch v. Texaco, Inc., 630 F.2d 46, 52 (2d Cir.1980) (“[Coercion that achieves actual price-fixing is illegal.”). Evidence of pricing suggestions, persuasion, conversations, arguments, exposition, or pressure is not sufficient to establish the coercion necessary to transgress § 1 of the Sherman Act. Yentsch, 630 F.2d at 53; Belfiore, 654 F.Supp. at 851. Rather, evidence of threats of termination or other explicitly coercive conduct that secure adherence to fixed prices is what supports “a finding of an illegal combination.” Yentsch, 630 F.2d at 53; see Belf-iore, 654 F.Supp. at 851. There is evidence in the record to indicate that Canada Dry" }, { "docid": "22241503", "title": "", "text": "providing valuable services. See Mathewson & Winter, The Law and Economics of Resale Price Maintenance, 13 Rev. Indus. Org. 57,74-75 (1998) (hereinafter Mathewson & Winter); Klein & Murphy, Vertical Restraints as Contract Enforcement Mechanisms, 31 J. Law & Econ. 265, 295 (1988); see also Deneckere, Marvel, & Peck, Demand Uncertainty, Inventories, and Resale Price Maintenance, 111 Q. J. Econ. 885, 911 (1996) (noting that resale price maintenance may be beneficial to motivate retailers to stock adequate inventories of a manufacturer’s goods in the face of uncertain consumer demand). B While vertical agreements setting minimum resale prices can have procompetitive justifications, they may have anti-competitive effects in other cases; and unlawful price fixing, designed solely to obtain monopoly profits, is an ever-present temptation. Resale price maintenance may, for example, facilitate a manufacturer cartel. See Business Electronics, 485 U. S., at 725. An unlawful cartel will seek to discover if some manufacturers are undercutting the cartel’s fixed prices. Resale price maintenance could assist the cartel in identifying price-cutting manufacturers who benefit from the lower prices they offer. Resale price maintenance, furthermore, could discourage a manufacturer from cutting prices to retailers with the concomitant benefit of cheaper prices to consumers. See ibid,.; see also Posner 172; Overstreet 19-23. Vertical price restraints also “might be used to organize cartels at the retailer level.” Business Electronics, supra, at 725-726. A group of retailers might collude to fix prices to consumers and then compel a manufacturer to aid the unlawful arrangement with resale price maintenance. In that instance the manufacturer does not establish the practice to stimulate services or to promote its brand but to give inefficient retailers higher profits. Retailers with better distribution systems and lower cost structures would be prevented from charging lower prices by the agreement. See Posner 172; Overstreet 13-19. Historical examples suggest this possibility is a legitimate concern. See, e. g., Marvel & McCafferty, The Welfare Effects of Resale Price Maintenance, 28 J. Law & Econ. 363, 373 (1985) (hereinafter Marvel) (providing an example of the power of the National Association of Retail Druggists to compel manufacturers to use resale price" }, { "docid": "18567092", "title": "", "text": "97, 102-03, 100 S.Ct. 937, 941-42, 63 L.Ed.2d 233 (1980). So all we must determine, on the liability phase of this case, is whether Isaksen put in enough evidence of resale price maintenance to get to the jury. Vermont Castings gave a suggested retail price list to all its dealers, together with assurances that the prices were only suggested and that the dealers could sell at any price they wanted. Isak-sen sold way under list price, and competing dealers bombarded Vermont Castings with complaints about him; the letter we quoted was one of these complaints. Beyond this the evidence is sharply contested, but of course we must view it as favorably to Isaksen as the record warrants, since the jury found in his favor; nor can we disregard the verdict merely because almost all of the evidence favorable to Isak-sen came from his own mouth. Isaksen testified that when Vermont Castings discovered how low his prices were, it began to threaten him, and otherwise harass him, in a variety of ways. Although Vermont Castings denies any harassment, this was something for the jury to sort out. Harassment by itself, however, would not violate section 1 of the Sherman Act, a section that punishes oniy contracts, combinations, and conspiracies in restraint of trade and thus requires concerted action; harassment is unilateral. If, though, the harassment were pursuant to an agreement between Vermont Castings and its other dealers, the agreement to harass would be actionable. But there is insufficient evidence to justify an inference of agreement between Vermont Castings and its other dealers. Complaints to a supplier, made by competitors of a dealer who is cutting prices below suggested levels, are not, standing alone, evidence of agreement. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1470-71, 79 L.Ed.2d 775 (1984); see also Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 661 (7th Cir.1987); Morrison v. Murray Biscuit Co., 797 F.2d 1430, 1439-40 (7th Cir.1986), and cases cited there. They may merely alert the supplier to the existence of a condition injurious to him, thus entitling" }, { "docid": "15764273", "title": "", "text": "that the supplier’s method of adjusting its wholesale gasoline prices was tantamount to illegal resale price maintenance. The Court of Appeals for the First Circuit affirmed the summary judgment in favor of the supplier. In its analysis, the First Circuit distilled from the authorities the essence of a resale price maintenance cause of action: Resale price maintenance is, in the absence of state fair trade legislation, a per se violation of the antitrust laws. Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). But before this doctrine can come into play there must be resale price maintenance. The Supreme Court cases have involved situations in which the attempt to set retail prices was clear. In Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964), upon which [plaintiff] relies, Union Oil had signed an agreement with the retailer containing the latter’s promise to resell at the price set by Union Oil. In Kiefer-Stewart a refusal to sell at a fixed price was met by a concerted refusal to deal. In Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968) and United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), the retailer was confronted with minimum or maximum prices and harassed by his supplier and others if he stepped out of line. Taken together, these cases suggest that a case of illegal resale price maintenance is made out when a price is announced and some course of action is undertaken or threatened contingent on the willingness or unwillingness of the retailer to adopt the price. The action need not necessarily fit under the rubric “coercion”, but it must involve making a meaningful event depend on compliance or non-compliance with the ‘suggested’ or stated price. The dealers in Parke, Davis and Albrecht were told that the harassment directed against them would end as" }, { "docid": "11001707", "title": "", "text": "this case did not settle, it would drag on for years as the parties conducted discovery throughout the country. Attorneys’ fees would escalate exponentially and could potentially reduce the amounts that the defendants would pay in settlement. The trial would be lengthy and complex because of the nationwide scope of the alleged activities. While the plaintiffs assert they have a strong case, the defendants deny that the facts and the law would permit recovery. In particular, the defendants contend that there was no coercion in this case and that, in any event, the pricing policies at issue did not have an effect on prices. The defendants rely on the permissible scope of conduct under cases such as United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), and Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). “Under Colgate, the manufacturer can announce its resale prices in advance and refuse to deal with those who fail to comply. And a distributor is free to acquiesce in the manufacturer’s demand in order to avoid termination.” Monsanto, 465 U.S. at 761, 104 S.Ct. at 1469. The fact that the retailer conformed to the manufacturer’s suggested price is not proof that the manufacturer unlawfully “agreed” with a retailer on the prices the retailer would charge. See id. at 764 n. 9, 104 S.Ct. at 1471 n. 9 (“The concept of a ‘meeting of the minds’ or ‘a common scheme’ in a distributor-termination case includes more than a showing that the distributor conformed to the suggested price.”); The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 1154 (9th Cir.1988); Isaksen v. Vermont Castings, Inc., 825 F.2d 1158, 1164 (7th Cir.1987), cert. denied, 486 U.S. 1005, 108 S.Ct. 1728, 100 L.Ed.2d 193 (1988). As Judge Posner has explained: [T]he mere fact of adherence to suggested retail prices does not establish agreement to adhere to them. If adherence alone could prove an agreement to adhere, the Colgate privilege — which allows a supplier to “coerce” the dealers’ adherence by threatening to cut" }, { "docid": "13641887", "title": "", "text": "maintenance agreement, express or implied; such a combination is also organized if the producer secures adherence to his suggested retail prices by means which go beyond his mere declination to sell to a customer who will not observe his announced policy- Id. at 43, 80 S.Ct. at 511. Sorisio claims that such an unlawful combination occurred when he unwillingly complied with Hartmann’s suggested prices. See Yentsch, supra, 630 F.2d at 52. Yet, the United States Supreme Court has held that “a distributor is free to acquiesce in the manufacturer’s demand in order to avoid termination.” Monsanto, supra, 465 U.S. at 761, 104 S.Ct. at 1469. The issue, therefore, is whether the plaintiff can offer evidence that his agreement was coerced. Mere reluctance to adhere to suggested retail prices, absent coercion, will not suffice. While evidence of exposition, persuasion, argument, or pressure alone is insufficient to establish coercion, threats of termination, as long as they secure adherence to the fixed price, have been deemed to trespass beyond the boundaries ... thereby triggering a finding of illegal combination. Yentsch, supra, 630 F.2d at 53. See also Bowen v. New York News, Inc., 522 F.2d 1242, 1254 (2d Cir.1975) (manufacturer’s threat of termination for noncompliance with resale prices constitutes active coercion, “whether made in combination with others or alone”), cert. denied, 425 U.S. 936, 96 S.Ct. 1667, 48 L.Ed.2d 177 (1976). “For [Sorisio] to avoid summary judgment on [his] price-fixing claim [he] must advance sufficient evidence to raise a genuine dispute as to whether defendant ] engaged in coercive activity to force adherence to its suggested retail price and plaintiff and other retailers actually adhered to that price.” Reborn Enterprises, Inc. v. Fine Child, Inc., 590 F.Supp. 1423, 1439 (S.D.N.Y.1984), aff'd, 754 F.2d 1072 (2d Cir.1985). As an initial matter, plaintiff offers no evidence, other than his own claim, that the discounting policy at Connecticut Handbag differed markedly from that of other Hart-mann retailers. According to plaintiff, his discount rate of thirty percent exceeded the rates of twenty percent or less used by other Hartmann dealers. Opposition Memorandum at 28-29; Sorisio Dep. at" } ]

[ { "docid": "22651056", "title": "", "text": "in favor of the incumbent party, and where the practice’s scope is substantial relative to the size of the electorate, the impact on the process can be significant. Our concern with the impact of patronage on political belief and association does not occur in the abstract, for political belief and association constitute the core of those activities protected by the First Amendment. Regardless of the nature of the inducement, whether it be by the denial of public employment or, as in Board of Education v. Barnette, 319 U. S. 624 (1943), by the influence of a teacher over students, “[ijf there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Id., at 642. And, though freedom of belief is central, “[t]he First Amendment protects political association as well as political expression.” Buckley v. Valeo, supra, at 15. “There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of 'orderly group activity’ protected by the First and Fourteenth Amendments. NAACP v. Button, 371 U. S. 415, 430; Bates v. Little Rock, 361 U. S. 516, 522-523; NAACP v. Alabama, 357 U. S. 449, 460-461. The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.” Kusper v. Pontikes, 414 U. S. 51, 56-57 (1973). These protections reflect our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964), a principle itself reflective of the fundamental understanding that “[ competition in ideas and governmental policies is at the core of our electoral process . . . Williams v. Rhodes, 393 U. S., at 32. Patronage, therefore, to the extent it compels or restrains belief and association, is inimical to the process which undergirds our system" } ]

[ { "docid": "407880", "title": "", "text": "exercise our discretion to entertain the newly advanced contentions that “[b]ecause The Salvation Army fulfills its central religious mission at its Adult Rehabilitation Centers through a comprehensive program of spiritual teaching, counselling and work therapy, the Act and Regulations infringe not only The Salvation Army’s religious freedom but also upon its freedom of association and speech.” Id. Cf. Roe v. Casey, 623 F.2d 829, 833-34 n. 11 (3d Cir.1980) (not inappropriate to discuss effect of change in law that occurred after district court decided case). We believe one significant issue raised by the freedom of association claim should be explored further in the district court. See id. at 842 (Hunter, J., concurring) (favoring remand to allow district court to address effect of change in law). In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the Supreme Court recognized that the First Amendment implicitly protects an independent right of freedom of association. In that case, the Court held that an Alabama statute requiring the NAACP to disclose to the State the names and addresses of its members was unconstitutional because it was likely to restrain individuals in the exercise of their First Amendment rights: Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.... It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny. Id. at 460-61, 78 S.Ct. at 1171 (citations omitted). In NAACP v. Alabama, “[t]he Court implicitly bifurcated associational rights into their individual and collective components.” Republican Party of the State of Connecticut v. Tashjian, 770 F.2d 265, 277 (2d Cir.1985), aff'd 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d" }, { "docid": "1480456", "title": "", "text": "I am equally certain that the university possesses the power and the right to deal with individuals and organizations, “recognized” or not, that violate either its lawful regulations or the laws of the state. There will be time for that if appellees’ dire predictions should somehow prove to be correct. The nature of our government demands that we abide that time. REGAN, District Judge, dissenting. I respectfully dissent. I recognize, as did the District Court, that the denial of official recognition to a college organization is a form of prior restraint of the First Amendment of right of association, as held in Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266. “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech,” NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488. And as the Supreme Court stated in the last cited case, “Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state actions which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” Having said this, I am nevertheless convinced, after a careful study of the record, that the District Court correctly held that the evidence amply justified the considered decision of the University officials to deny recognition to Gay Lib. What Healy v. James held was that “denial of official recognition, without justification, to college organizations burdens or abridges the right of individuals to associate to further their personal beliefs.” Healy involved a “left wing” group (Students for a Democratic Society) which sought recognition at a time when “[tjhere had been widespread civil disobedience on some [college] campuses, accompanied by the seizure of buildings, vandalism and arson,” with respect to which “SDS chapters on some of these campuses had been a catalytic force during this period.” However, inasmuch as there was a" }, { "docid": "12143817", "title": "", "text": "court, suggested that three separate constitutional interests were infringed by the defendants’ hiring policy: first, “the plaintiff candidates’ rights of free political belief and expression,” 481 F.Supp. at 1333; second, the plaintiff voters and candidates’ right to associate, id. at 1333-34; and third, the plaintiff candidates and voters’ right to equal participation in the electoral process, id. at 1334-35. In our view, however, the heart of the plaintiffs’ case is their contention that the hiring practices of the defendants violate the speech and associational rights of candidates and voters. As a general proposition, the right of candidates and voters to communicate freely is beyond question. It is also “beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958). It is also well-established that “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” Bullock v. Carter, 405 U.S. 134,143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972). However, the recitation of these broad principles — as important as they are — does not provide us with sufficient guidance to resolve the issue of standing before us. A far more focused inquiry is required to determine whether the asserted injury is fairly traceable to the defendants’ activity. We must more precisely “consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff[s] seek[] to vindicate.” Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983). At the outset, it is important to note that the hiring practice at issue here is significantly different from the sort of activity that usually forms the basis of a challenge to an electoral system. Indeed, this case is not really a challenge to the" }, { "docid": "2948745", "title": "", "text": "(1967). THE CONSTITUTIONAL QUESTION AND THE REMEDY We think N.C.G.S. § 95-97 is void on its face as an abridgment of freedom of association protected by the First and Fourteenth Amendments of the Constitution of the United States. The flaw in it is an intolerable “over-breadth” unnecessary to the protection of valid state interests. Cf. United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967). The Supreme Court of the United States has accorded “freedom of association” full status as an aspect of liberty protected by the Due Process Clause of the Fourteenth Amendment and by the rights of free speech and peaceful assembly explicitly set out in the First Amendment. In NAACP v. Alabama ex rel. Patterson, the Court said: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. [Citations omitted.] Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” 357 U.S. 449, 460-461, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488, 1498-1499 (1958). (Emphasis ours.) \\T3ie Court had previously noted the close connection between the freedoms of speech and assembly. In De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278, 283-284 (1937), the Court held that the right of peaceable assembly is a right cognate to those of free speech and free press and equally fundamental. It was said that the right is one that cannot be denied without violating fundamental principles of liberty and justice which lie at the base of all civil and political institutions. The Court made a careful distinction between the proper exercise of legislative power to protect against abuse of the right of assembly and legislative infringement per se of that right, holding that the latter is not permissible. Especially pertinent to" }, { "docid": "22068516", "title": "", "text": "who is and is not sufficiently allied in interest with the party to warrant inclusion in its candidate selection process . . . substantially impinges on First Amendment rights.” 599 F. Supp., at 1238. Rejecting the state interests proffered by appellant to justify the statute, the District Court held that “as applied to the Republican Party rule permitting unaffiliated voters to participate in certain Republican Party primaries, the statute abridges the right of association guaranteed by the First Amendment.” Id., at 1241. The Court of Appeals affirmed, holding that § 9-431 “substantially interferes with the Republican Party’s first amendment right to define its associational boundaries, determine the content of its message, and engage in effective political association.” 770 F. 2d, at 283. II We begin from the recognition that “ [constitutional challenges to specific provisions of a State’s election laws . . . cannot be resolved by any ‘litmus-paper test’ that will separate valid from invalid restrictions.” Anderson v. Cele brezze, 460 U. S. 780, 789 (1983) (quoting Storer v. Brown, 415 U. S. 724, 730 (1974)). “Instead, a court. . . must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” 460 U. S., at 789. The nature of appellees’ First Amendment interest is evident. “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460 (1958); see NAACP v. Button, 371 U. S. 415, 430 (1963); Bates v. Little Rock, 361 U. S." }, { "docid": "18676536", "title": "", "text": "a petition involves the type of interactive communication concerning political change that is appropriately described as ‘core political speech.’ Id. 108 S.Ct. at 1891-92. The characterization by the Supreme Court of initiative petitions as “core political speech” counsels us toward caution when asked to declare that federal law requires the State to impose a bilingual requirement on a petition originated by private citizens pursuant to Florida law. In other cases concerning state statutes which purported to further some state interest by imposing restrictions on private political activity, the Supreme Court has repeatedly stressed the primacy of the rights of free speech and association. In Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), the Court struck down an Ohio statute which required any new political party seeking a position on the ballot in a presidential election to obtain petitions signed by 15% of the qualified electors who voted in the last gubernatorial election. Despite the state’s claim that the provision was necessary to promote political compromise and stability, the Court held that “this [state] interest cannot justify the very severe restrictions on voting and associational rights which Ohio has imposed.” Id. at 32, 89 S.Ct. at 11. More recently, in Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986), the Court struck down a Connecticut statute which required voters in any political party primary to be registered members of that party. The Court invoked a long line of First Amendment precedent in holding that the burden this imposed on private political association could not be sustained: The nature of the appellees’ First Amendment interest is evident. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.... The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom. As we have said, the freedom to join together in furtherance of common political" }, { "docid": "1480431", "title": "", "text": "are more worthy of belief because of their outstanding professional credentials. We need not pause here since defendants’ evidence turns solely on Dr. Voth’s conclusory “inference” and Dr. Socarides’ “belief,” for which no historical or empirical basis is disclosed. Even accepting the opinions of defendants’ experts at face value, we find it insufficient to justify a governmental prior restraint on the right of a group of students to associate for the purposes avowed in their statement and revised statement of purposes. While it is difficult to articulate generalized standards as to the quantum and quality of proof necessary to justify the abridgment of First Amendment rights, the many Supreme Court cases dealing with prior restraints and other First Amendment issues make clear that the restriction of First Amendment rights in the present context may be justified only by a far greater showing of a likelihood of imminent lawless action than that presented here. Mr. Justice Harlan, in delivering the opinion of the Supreme Court in NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), emphasized the importance of freedom to engage in association: Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. [Citations omitted.] It is beyond debate that freedom to engage in association for the advance ment of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. [Citations omitted.] Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny. 357 U.S. at 460-61, 78 S.Ct. at 1171. In the present case, none of the purposes or aims of Gay Lib, at least in this record, evidences advocacy of present violations of state law or of university" }, { "docid": "547907", "title": "", "text": "of the various routes to the ballot” and to involve “no discrimination against independents”; American Party v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974) (petition requirement for independents and minor parties); Hopfmann v. Connolly, 746 F.2d 97 (1st Cir.1984), vacated in part on other grounds, 471 U.S. 459, 105 S.Ct. 2106, 85 L.Ed.2d 469 (1985) (party requirement that candidates receive fifteen percent of the vote at the convention in order to be included on the ballot in the state primary election); Public Citizen, Inc. v. Miller, 813 F.Supp. 821 (N.D.Ga.) (law requiring a run-off election for Congress), aff'd per curiam, 992 F.2d 1548 (11th Cir.1993); Williams v. Tucker, 382 F.Supp. 381 (M.D.Pa.1974) (statute preventing candidate from contemporaneously filing nomination papers and running in primary); Clark v. Rose, 379 F.Supp. 73 (S.D.N.Y.1974) (statute requiring authorization of party’s state committee for non-member of party to' run in its primary), aff'd, 531 F.2d 56 (2nd Cir.1976); Fowler v. Adams, 315 F.Supp. 592 (M.D.Fla.1970) (statute requiring candidates to pay a filing fee), appeal dismissed, 400 U.S. 986, 91 S.Ct. 477, 27 L.Ed.2d 436 (1971). But the law recognizes that fundamental rights under the First and Fourteenth Amendments are affected by ballot access measures. In Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968), the Supreme Court struck down a state statute that imposed onerous petition requirements on small parties seeking ballot access, and stated: In the present situation the state laws place burdens on two different, although overlapping, kinds of rights — the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. It “is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d" }, { "docid": "22068517", "title": "", "text": "730 (1974)). “Instead, a court. . . must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” 460 U. S., at 789. The nature of appellees’ First Amendment interest is evident. “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460 (1958); see NAACP v. Button, 371 U. S. 415, 430 (1963); Bates v. Little Rock, 361 U. S. 516, 522-523 (1960). The freedom of association protected by the First and Fourteenth Amendments includes partisan political organization. Elrod v. Burns, 427 U. S. 347, 357 (1976) (plurality opinion); Buckley v. Valeo, 424 U. S. 1, 15 (1976). “The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.” Kusper v. Pontikes, 414 U. S. 51, 57 (1973). The Party here contends that § 9-431 impermissibly burdens the right of its members to determine for themselves with whom they will associate, and whose support they will seek, in their quest for political success. The Party’s át-tempt to broaden the base of public participation in and support for its activities is conduct undeniably central to the exercise of the right of association. As we have said, the freedom to join together in furtherance of common political beliefs “necessarily presupposes the freedom to identify the people who constitute the association.” Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 122 (1981). A" }, { "docid": "11256658", "title": "", "text": "1279). Within this framework, we will consider each of the Libertarians’ three challenges in turn. We subject the district court’s determinations whether any particular provision or set of provisions passes constitutional muster to de novo review. Fulani v. Krivanek, 973 F.2d 1539, 1541 (11th Cir.1992). A. We first consider the state law provisions restricting political party access to the ballot. As a rule, state laws that restrict a political party’s access to the ballot always implicate substantial voting, assoeiational and expressive rights protected by the First and Fourteenth Amendments. That is because “it is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty1 assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech,” Anderson, 460 U.S. at 787, 103 S.Ct. at 1569 (internal quotation omitted), and because “[t]he right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes.” Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968); see also Norman v. Reed, supra, 502 U.S. at 289, 112 S.Ct. at 705; Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214, 107 S.Ct. 544, 548, 93 L.Ed.2d 514 (1986). Moreover, the burden that North Carolina’s ballot access restrictions impose on protected interests is undoubtedly severe — that is, as history reveals, those regulations make it extremely difficult for any “third party” to participate in electoral politics. It remains only to determine, then, whether the North Carolina rules that govern a party’s ability to place its candidates on the general election ballot are the least restrictive means to achieve the “important state interest in requiring some preliminary modicum of support before printing the name of a political organization’s candidate on the ballot — the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the gen eral election.” Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976," }, { "docid": "547908", "title": "", "text": "U.S. 986, 91 S.Ct. 477, 27 L.Ed.2d 436 (1971). But the law recognizes that fundamental rights under the First and Fourteenth Amendments are affected by ballot access measures. In Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968), the Supreme Court struck down a state statute that imposed onerous petition requirements on small parties seeking ballot access, and stated: In the present situation the state laws place burdens on two different, although overlapping, kinds of rights — the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. It “is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958). A law that excludes candidates from the ballot “burdens voters’ freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for like-minded citizens.” Anderson, 460 U.S. at 787-88, 103 S.Ct. at 1569-70. As for candidates’ rights, although reasonable regulations may be imposed, “[t]he right of a party or an individual to a place on a ballot is entitled to protection and is intertwined with the rights of voters.” Lubin, 415 U.S. at 716, 94 S.Ct. at 1320. The inquiry is “whether the challenged restriction unfairly or unnecessarily burdens the ‘availability of political opportunity.’ ” Anderson, 460 U.S. at 793, 103 S.Ct. at 1572, quoting Clements v. Fashing, 457 U.S. 957, 964, 102 S.Ct. 2836, 2844, 73 L.Ed.2d 508 (1982), and Lubin, 415 U.S. at 716, 94 S.Ct. at 1320. On this basis, unduly restrictive ballot measures have been held unconstitutional as violating the First and Fourteenth Amendment rights of voters and candidates. See," }, { "docid": "22618682", "title": "", "text": "of constitutional law led us to grant certiorari. 456 U. S. 960 (1982). We now reverse. I After a date toward the end of March, even if intervening events create unanticipated political opportunities, no independent candidate may enter the Presidential race and seek to place his name on the Ohio general election ballot. Thus the direct impact of Ohio’s early filing deadline falls upon aspirants for office. Nevertheless, as we have recognized, “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” Bullock v. Carter, 405 U. S. 134, 143 (1972). Our primary concern is with the tendency of ballot access restrictions “to limit the field of candidates from which voters might choose.” Therefore, “[i]n approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.” Ibid. The impact of candidate eligibility requirements on voters implicates basic constitutional rights. Writing for a unani mous Court in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460 (1958), Justice Harlan stated that it “is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” In our first review of Ohio’s electoral scheme, Williams v. Rhodes, 393 U. S. 23, 30-31 (1968), this Court explained the interwoven strands of “liberty” affected by ballot access restrictions: “In the present situation the state laws place burdens on two different, although overlapping, kinds of rights — the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms.” As we have repeatedly recognized, voters can assert their preferences only through candidates or parties or both. “It is to be expected that a voter hopes to find on the ballot" }, { "docid": "10887555", "title": "", "text": "personal right of free speech and to take part in a peaceable assembly having a lawful purpose, although called by that Party. The defendant was none the less entitled to discuss the public issues of the day and thus in a lawful manner, without incitement to violence or crime, to seek redress of alleged grievances. That was of the essence of his guaranteed personal liberty.” Id. at 365-66, 57 S.Ct. at 260. From this basic right to assemble peaceably, along with the companion rights of free speech and press, the Court in the 1950s developed the broader concept of freedom of association. Thus, in its 1957 decision in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the Court held unconstitutional a state court order requiring the NAACP to provide its membership lists, and emphasized the likelihood of reprisals against the persons whose names were disclosed. Addressing the constitutional right at stake, Justice Harlan wrote, Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assem-bly____ It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.... Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny. Id. at 460-61, 78 S.Ct. at 1171. He continued, “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.\" Id. at 462, 78 S.Ct. at 1172. . See Butz, 438 U.S. at 508, 98 S.Ct. at 2911. In his partial dissent in Butz, Justice Rehnquist argued that the immunity defense established there" }, { "docid": "12143816", "title": "", "text": "of patronage hiring policies on candidates and voters. See, e.g., Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) (discussing politically-motivated firing); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (discussing politically-motivated firing); Avery v. Jennings, 786 F.2d 233 (6th Cir.) (analyzing the impact of patronage hiring practices on prospective employees), cert, denied, — U.S.-, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986); McCormick v. Edwards, 646 F.2d 173 (5th Cir. Unit A 1981) (discussing firing resulting from political activity), cert, denied, 454 U.S. 1165, 102 S.Ct. 1042, 71 L.Ed.2d 323 (1982); Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir.1972) (discussing politically-motivated firing), cert, denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973); Rutan v. Republican Party of Illinois, 641 F.Supp. 249 (N.D.Ill. 1986), appeal filed, No. 86-2073 (7th Cir. argued Apr. 7, 1987) (primarily discussing the impact of politically-motivated hiring practices on employees). In a thoughtful opinion, the district court, operating without very much guidance from the earlier opinion of this court, suggested that three separate constitutional interests were infringed by the defendants’ hiring policy: first, “the plaintiff candidates’ rights of free political belief and expression,” 481 F.Supp. at 1333; second, the plaintiff voters and candidates’ right to associate, id. at 1333-34; and third, the plaintiff candidates and voters’ right to equal participation in the electoral process, id. at 1334-35. In our view, however, the heart of the plaintiffs’ case is their contention that the hiring practices of the defendants violate the speech and associational rights of candidates and voters. As a general proposition, the right of candidates and voters to communicate freely is beyond question. It is also “beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958). It is also well-established that “the rights of voters and the rights" }, { "docid": "23403790", "title": "", "text": "freedom,” Kusper, supra, at 57. The Court has repeatedly reaffirmed that the First and Fourteenth Amendments protect the rights of voters and parties to associate through primary elections. See, e. g., California Democratic Party, supra, at 574-575; Tashjian, supra, at 214; Kusper, supra, at 56-57. Indeed, constitutional protection of associational rights is especially important in this context because the aggregation of votes is, in some sense, the essence of the electoral process. To have a meaningful voice in this process, the individual voter must join together with like-minded others at the polls. And the choice of who will participate in selecting a party’s candidate obviously plays a critical role in determining both the party’s message and its prospects of success in the electoral contest. See California Democratic Party, supra, at 575; see also Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 122 (1981) (“[T]he freedom to associate for the ‘common advancement of political beliefs’ necessarily presupposes the freedom to identify the people who constitute the association” (quoting Kusper, supra, at 56)). The plurality questions whether the LPO and voters registered with another party have any constitutionally cognizable interest in associating with one another through the •LPO’s primary. See ante, at 588-589. Its doubts on this point appear to stem from two implicit premises: first, that a voter forms a cognizable association with a political party only by registering with'that party; and second, that a voter can only form a cognizable association with one party at a time. Neither of these premises is sound, in my view. As to the first, registration with a political party surely may signify an important personal commitment, which may be accompanied by faithful voting and even activism beyond the polls. But for many voters, registration serves principally as a mandatory (and perhaps even ministerial) prerequisite to participation in the party’s primaries. The act of casting a ballot in a given primary may, for both the voter and the party, constitute a form of association that is at least as important as the act of registering. See La Follette," }, { "docid": "18676537", "title": "", "text": "that “this [state] interest cannot justify the very severe restrictions on voting and associational rights which Ohio has imposed.” Id. at 32, 89 S.Ct. at 11. More recently, in Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986), the Court struck down a Connecticut statute which required voters in any political party primary to be registered members of that party. The Court invoked a long line of First Amendment precedent in holding that the burden this imposed on private political association could not be sustained: The nature of the appellees’ First Amendment interest is evident. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.... The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom. As we have said, the freedom to join together in furtherance of common political beliefs necessarily presupposes the freedom to identify the people who constitute the association. Id. at 214, 107 S.Ct. at 548 (emphasis added) (citations omitted). The Court went on to note that the right of “like-minded citizens in support of common political goals” to organize themselves is particularly important “at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.” Id. at 215-16, 107 S.Ct. at 549-50. We are similarly reluctant to construe a federal statute to mandate the imposition of a substantial burden on the right of political association, particularly where the clear language of the Act does not so require. It is hard to imagine that in passing the Act, Congress could have intended that private citizens seeking to further their own political goals through the initiative petition process be subject to specific language requirements. Rather, the interests of both the First Amendment and the Voting Rights Act can be harmonized by limiting the latter to those activities involved in" }, { "docid": "17210850", "title": "", "text": "and his supporters, and violates his civil rights by discriminating against him in favor of the candidates of minor political parties. This Court held a bench trial on July 22, 2004. The parties filed and the Court accepted Joint Stipulations of Fact (Doc. # 15) and Supplemental Joint Stipulations of Fact (Doc.# 19) with regard to all substantive issues before the Court. See Fed. R. Crv. P. 52(a). The Court, having considered the pleadings in this cause, the parties’ stipulations, the testimony of Nader’s witness, Linda Curtis, concerning the difficulty Nader encountered in obtaining signatures, and the briefs and argument of counsel, concludes that sections 192.032(a), 192.032(b)(3)(A), 192.032(c), and 192.032(d) of the Texas Election Code pass constitutional muster for the following reasons. II. Analysis A. Level of Scrutiny Nader challenges the constitutionality and legality of these portions of the Texas Election Code on the ground that the disparity between the signature requirements and the signature deadlines for independent candidates and those for minor political-party candidates is discriminatory and unconstitutionally burdensome to independent candidates. Courts have long recognized that candidate-eligibility requirements in state election laws implicate fundamental constitutional rights. See Anderson v. Celebrezze, 460 U.S. 780, 786, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). The “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraced freedom of speech.” Id. at 787, 103 S.Ct. 1564 (quoting NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958)). Ballot-access restrictions place burdens on two kinds of rights — the right of individuals to associate for the advancement of political beliefs and the right of qualified voters of all political persuasions to cast their votes effectively. Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). However, not all restrictions imposed by the states on candidates’ ballot access impose constitutionally suspect burdens on voters’ rights to associate or choose among candidates. Anderson, 460 U.S. at 788, 103 S.Ct. 1564. States are granted authority to substantially regulate" }, { "docid": "22618683", "title": "", "text": "in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460 (1958), Justice Harlan stated that it “is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” In our first review of Ohio’s electoral scheme, Williams v. Rhodes, 393 U. S. 23, 30-31 (1968), this Court explained the interwoven strands of “liberty” affected by ballot access restrictions: “In the present situation the state laws place burdens on two different, although overlapping, kinds of rights — the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms.” As we have repeatedly recognized, voters can assert their preferences only through candidates or parties or both. “It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.” Lubin v. Panish, 415 U. S. 709, 716 (1974). The right to vote is “heavily burdened” if that vote may be cast only for major-party candidates at a time when other parties or other candidates are “clamoring for a place on the ballot.” Ibid.; Williams v. Rhodes, supra, at 31. The exclusion of candidates also burdens voters’ free dom of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for like-minded citizens. Although these rights of voters are fundamental, not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates. We have recognized that, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the" }, { "docid": "17210851", "title": "", "text": "long recognized that candidate-eligibility requirements in state election laws implicate fundamental constitutional rights. See Anderson v. Celebrezze, 460 U.S. 780, 786, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). The “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraced freedom of speech.” Id. at 787, 103 S.Ct. 1564 (quoting NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958)). Ballot-access restrictions place burdens on two kinds of rights — the right of individuals to associate for the advancement of political beliefs and the right of qualified voters of all political persuasions to cast their votes effectively. Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). However, not all restrictions imposed by the states on candidates’ ballot access impose constitutionally suspect burdens on voters’ rights to associate or choose among candidates. Anderson, 460 U.S. at 788, 103 S.Ct. 1564. States are granted authority to substantially regulate elections to ensure that they are fair, honest, and orderly through the enactment of election codes. Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). These codes affect to some degree the individual's right to vote and to associate with others for political ends, but the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions. Anderson, 460 U.S. at 788,103 S.Ct. 1564. Signature requirements and the deadlines for submitting signatures have been upheld as constitutional. See Norman v. Reed, 502 U.S. 279, 295, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992) (upholding signature requirements); American Party v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974) (upholding both signature requirements and deadline for obtaining signatures); Storer, 415 U.S. at 745-46, 94 S.Ct. 1274 (upholding signature requirements); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) (upholding signature requirements); Texas Indep. Party v. Kirk, 84 F.3d 178, 186 (5th Cir. 1996) (upholding early May deadlines for submitting petition signatures). Indeed, the Supreme Court" }, { "docid": "11520569", "title": "", "text": "evidence or argue the merits of the issue. Under the circumstances in this case, the court does not feel the plaintiff should be penalized for merely attempting to clarify which issues are not properly before the court. D. Constitutional Violation The city and the individual defendants forcefully argue that plaintiff suffered no constitutional injury. They believe the rights plaintiff asserts — the right to freedom of political association and the right to be a candidate — either do not exist, were not implicated, or were not violated. The court agrees with defendants; plaintiff did not suffer a constitutional injury here. 1. Level of Scrutiny Plaintiff proposes a level of scrutiny gleaned from prototypical freedom of association cases. He believes the court should subject the defendants’ conduct to strict scrutiny review because the conduct objectively chilled his associational rights. See National Commodity and Barter Ass’n v. Archer, 31 F.3d 1521, 1531 n. 4 (10th Cir. 1994) (NCBA). The court disagrees with plaintiff because plaintiffs associational rights were not implicated here in the same way as associational rights are implicated in prototypical freedom of association cases. Specifically, the court does not believe plaintiff has sufficiently identified a person or group with whom his right to associate was chilled. The right to associate freely is not explicitly enumerated in the First Amendment; it has its modern roots in NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). There, the Supreme Court held that an Alabama state court could not hold the NAACP in contempt for refusing to disclose its membership list when evidence indicated that such disclosure would have profound negative effects on NAACP members and the NAACP’s efforts to recruit new members. Id. The Court held that “[i]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of. the Fourteenth Amendment, which embraces [First Amendment] freedom of speech [by incorporation].” Id. Courts refined the concept of free association over time, and the chillingfetrict scrutiny test became the" } ]

[ { "docid": "9350900", "title": "", "text": "day after July 1 was Sunday, September 29. Thus the action was not brought within 90 days after receipt of notice from the Commission if Sunday, September 29 is counted as the ninetieth day for the purpose of 42 U.S.C. § 2000e — 5(f)(1). The Equal Employment Opportunity Commission, as amicus, urges that the statute should be interpreted in conformity with the rules governing time limitations in civil actions, Rule 6(a), Fed.Rule Civ.P. (Cf. Rule 26(a), F.R.A.P.; Rule 45(a), Fed.Rule Crim.P.; Rule 34, Rules of the Supreme Court). Under that rule the last day of a period of time is not to be included if it is a Saturday, Sunday, or legal holiday. Although the procedural rule does not directly apply to a statute of limitations, courts have at times invoked the principle of the rule as a matter of interpretation. 2 Moore’s Federal Practice K 6.06[2]. See also, Nagatoshi v. Ex-Cello Corp., 282 F.2d 380, 381 (7th Cir. 1960). We think that in the light of the purposes intended to be served by Title VII, it is a sound interpretation of congressional intent that the party plaintiff is to have a full span of ninety days in which to file his action, and that accordingly, when the ninetieth calendar day is a Saturday, Sunday, or holiday, the period does not expire until the end of the next day which is none of these three. Accordingly, plaintiffs’ action should be treated as predicated upon Title VII as well as § 1981. III. THE CASE AGAINST THE INTERNATIONAL UNION Defendant Bricklayers, Masons and Plasterers International Union of America is a labor organization representing bricklayers employed throughout the United States. Plaintiffs allege that the Union “wrote defendant Secretary that there were no bricklayers available for employment by defendant Furnco” and allege that the Union made no investigation to determine whether the statement was accurate. Plaintiffs did not allege that the Union had any direct relationship with them nor awareness of them. The only suggestion of a link between the Union and the wrong allegedly done plaintiffs is found in allegations that the" } ]

[ { "docid": "12353800", "title": "", "text": "of the EEOC filing (dually with CHRO), the EEOC filing was timely under the 300-day limit. March 3, 2013 was a Sunday. The EEOC’s official publication provides under the caption “Time Limits for Filing a Charge” that “Holidays and weekends are included in the calculation, although if the deadline falls on a weekend or holiday, you will have until the next business day.” (emphasis added). Courts considering the question also reach that result by applying the guidelines set forth in Rule 6(a), Fed. R.Civ.P. Specifically, district courts that have addressed the proper calculation method for timeliness of an EEOC complaint in a federal discrimination action have employed Rule 6(a), Fed.R.Civ.P. See, e.g., Gamas v. Anheuser-Busch, Inc., No. Civ. 03-89-PB, 2005 WL 419690, at *2 (D.N.H. Feb. 23, 2005) (“it is reasonable to assume that the drafters of the 300-day limitation period [for an EEOC complaint] had Rule 6(a) in mind when they enacted the limitation period” in Title VII); Davitt v. Open MRI of Allentown, LLC, No. Civ A. 03-5612, 2003 WL 23162429, *4 (E.D.Pa. Oct. 8, 2003) (holding plaintiffs filing of EEOC complaint timely under Rule 6(a) because “Fed.R.Civ.P. 6 applies to time calculations made pursuant to [Title VII] section 2000e[,] et seq. of Title 42”); Bethelmie v. New York City Health and Hospitals Corp., No. 00 CIV. 3707(FM), 2001 WL 863424, at *2 (S.D.N.Y. July 31, 2001) (in the context of Americans with Disabilities Act (“ADA”), “pursuant to Rule 6(a), Saturdays and Sundays must be included in calculating whether Bethelmie’s ADA claim was timely filed with the EEOC”); Bonebrake v. West Burlington Ind. Sch. Dist., No. 3-99-CV-90209, 2001 WL 901265, *4 (S.D.Iowa Aug. 9, 2001) (“The Court holds that the ADEA is an applicable statute for purposes of Rule 6(a) and therefore the 300 day filing period may not expire on a Sunday.”). Rule 6(a)(1)(C) explicitly provides that in computing time periods, one must “include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not" }, { "docid": "3800249", "title": "", "text": "494 n. 4 (8th Cir.1985) (“it may even be argued that [a rule in which the last day would be October 30] may be too generous by one day, on a theory that the Federal Rules of Civil Procedure are not applicable to statutory time periods”). If Rule 6(a) were applied, for example in Hughes, the day of mailing would be excluded, making November 15 the first day of the limitations period. It would not be possible for the last day to then be May 13, requiring, as it would, reaching back two calendar days from the anniversary date of May 15. The question then becomes whether it is appropriate not to apply Rule 6(a) to compute this period. Courts have split over whether Rule 6(a) should be applied to statutory limitations periods. Compare, e.g., Rust v. Quality Car Corral, Inc., 614 F.2d 1118 (6th Cir.1980) (Rule 6(a) does not apply to the period prescribed by the Truth in Lending Act, 15 U.S.C. § 1640(e)), with In re Gotham Provision Co., 669 F.2d 1000, 1014 (5th Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982) (Rule 6(a) applies to federal statutes). In Pearson v. Furnco Construction Co., 563 F.2d 815 (7th Cir.1977), the Seventh Circuit held that Rule 6(a) did apply in computing the 90-day period prescribed by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(l). However, the court did not apply Rule 6(a) to federal statutes generally. Instead it stated: Although the procedural rule does not directly apply to a statute of limitations, courts have at times invoked the principle of the rule as a matter of interpretation____ We think that in light of the purposes intended to be served by Title VII, it is a sound interpretation of a congressional intent that the party plaintiff is to have a full span of ninety days in which to file his action, and that [Rule 6(a) should be applied]. Unlike Title VII, however, which is remedial in purpose and should therefore be liberally construed, see Ulane v. Eastern Airlines, Inc., 742" }, { "docid": "13913139", "title": "", "text": "mentioned only one of the two case numbers, and purported to appeal the decision in “the above-referenced case.” The EEOC opinion denying Plaintiff’s appeal refers only to the retaliation charge. Because the Complaint in this action was filed more than 30 days after Plaintiff’s receipt of notice of the decision of Defendant’s EEO officer, Plaintiff’s Complaint regarding her termination was not timely filed. Plaintiff properly appealed Defendant’s denial of her retaliation charge to the EEOC, which denied her appeal. Plaintiff filed the Complaint in this action 31 days after receiving notice of EEOC’s decision. Because the thirtieth day was a Sunday, Plaintiff argues that under Fed.R.Civ.P. 6(a), her filing on the next business day was timely. In Eastland v. Tennessee Valley Authority, 553 F.2d 364 (5th Cir. 1977), the Fifth Circuit held that 42 U.S.C. § 2000e-16(c) is a congressional grant of jurisdiction to the District Courts, and that its 30 day limit could not be expanded by EEOC regulation. Id. at 368-69. Since Eastland, two District Courts in this Circuit have considered Plaintiff’s Rule 6(a) argument, and have reached opposite conclusions. In Jordan v. Lewis Grocer Co., 467 F.Supp. 113 (N.D.Miss.1979), the Court held that Rule 6(a) could be applied to extend the period for filing a discrimination complaint to include the next Monday. In Smith v. Bailar, 22 FEP Cases 1378 (N.D.Ga.1980), the Court refused to include the following Monday in the 30 day period, citing Eastland. This Court finds the reasoning of Smith to be persuasive. In Smith, Judge Edenfield reasoned that if 42 U.S.C. § 2000e-16(c) is a jurisdictional statute, as the Fifth Circuit held in Eastland, then its 30 day limitation cannot be extended by Rule 6(a). Indeed, Fed.R. Civ.P. 82 provides that the Federal Rules of Civil Procedure “shall not be construed to extend or limit the jurisdiction of the United States district courts.” Furthermore, the Fifth Circuit has held that the analogous 90 day limitations period for private sector employees cannot be extended by the court because the statute is jurisdictional in nature. Prophet v. Armco Steel, Inc., 575 F.2d 579 (5th Cir." }, { "docid": "5485855", "title": "", "text": "civil nature,” and thus the Rules, including Rule 6(a), do not apply. The argument has been almost uniformly rejected in Title VII actions. In Pearson v. Furnco Constr. Co., 563 F.2d 815, 818-19 (7th Cir. 1977), for example, the 90th day after the EEOC Notice was Sunday, September 29. Plaintiff’s complaint was filed on Monday, September 30. The court stated that the spirit of Rule 6(a) governed, and held the filing timely: We think that in the light of the purposes intended to be served by Title VII, it is a sound interpretation of congressional intent that the party plaintiff is to have a full span of ninety days in which to file his action, and that accordingly, when the ninetieth calendar day is a Saturday, Sunday, or holiday, the period does not expire until the end of the next day which is none of these three. Accord, Bailey v. Boilermakers Local 667, 480 F.Supp. 274, 282 (N.D.W.Va.1979) (90th day Sunday; complaint filed on Monday held timely); Menn v. Amstar Corp., 476 F.Supp. 303, 306 (D.Md.1979) (90th day Labor Day; complaint filed next day held timely); Jordan v. Lewis Grocer Co., 467 F.Supp. 113, 115 (N.D.Miss.1979) (90th day Sunday; complaint filed Monday held timely); Burks v. Vann’s Baking Corp., 3 FEP Cases 620 (W.D.Tenn.1971) (under 30-day deadline applicable before 1972 amendment creating 90-day deadline) (30th day Sunday; complaint filed Monday held timely). Cf. Tavernaris v. Beaver Area School District, 454 F.Supp. 355, 357 (W.D.Pa.1978) (90th day Monday; complaint filed on Wednesday held timely because Title VII “should be liberally construed”). See Haire v. Calloway, 385 F.Supp. 309, 310 (E.D.Mo. 1974) (under 42 U.S.C. § 2000e-16) (30-day limit ends Saturday; complaint filed Monday held timely), vacated on other grounds, 537 F.2d 318 (8th Cir. 1976); contra, Smith v. Bailar, 22 FEP Cases 1378 (N.D.Ga. Feb. 15, 1980) (under § 2000e-16) (30th day Saturday; complaint filed on Monday held not timely). In view of the broad remedial purposes of Title VII, see Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972), we decline to extend" }, { "docid": "14582481", "title": "", "text": "claim must be, and is, sustained. 2. Count II: MOTION SUSTAINED The Teamsters Local has moved for summary judgment with respect to Count II. The second count of the amended complaint alleges that the Teamsters violated § 301 when they failed to fulfill their duty of fairly representing him in the grievance process. For the reasons set out in Part II. Sec. 1. of this opinion, supra, said § 301 action is time-barred and the Defendant’s motion for summary judgment with respect to it must be, and is, sustained. 3. Count III: MOTION OVERRULED The Teamsters Local has moved for summary judgment with respect to Count III. The third count of the amended complaint alleges that the Teamsters violated Title VII, 42 U.S.C. § 2000e et seq., in that the union did not treat his grievance similarly to those filed by white union members. The primary defense advanced by the Union on Count III is that the complaint was not filed within 90 days after receipt of the “right-to-sue” letter from the EEOC, as mandated by 42 U.S.C. § 2000e-5(f)(1). Plaintiff received the letter on September 8, 1980, and filed suit in this Court on December 8, 1980, which he concedes is some ninety-one days later. Defendant argues that the failure to file within the statutory maximum limit of ninety days deprives this Court of jurisdiction over the matter. Plaintiff, however, points out that under Fed.R.Civ.P. 6(a), which governs the computation of time prescribed by “any applicable statute,” if the last day of a period falls on a Sunday, the period of time runs until the next day. December 7, 1980, was a Sunday, and the suit was filed the next day. This Court agrees with the Plaintiff that this procedure complied with the statute, as construed with Rule 6(a). Several courts have applied Rule 6(a) to similar Title VII situations. See, e.g., Pearson v. Furnco Construction Co., 563 F.2d 815, 818-19 (7th Cir. 1977); Jordan v. Lewis Grocer Co., 467 F.Supp. 113, 115 (N.D.Miss.1979). In so applying Rule 6(a), this Court rejects authority to the contrary, see, Milam v." }, { "docid": "5485856", "title": "", "text": "(D.Md.1979) (90th day Labor Day; complaint filed next day held timely); Jordan v. Lewis Grocer Co., 467 F.Supp. 113, 115 (N.D.Miss.1979) (90th day Sunday; complaint filed Monday held timely); Burks v. Vann’s Baking Corp., 3 FEP Cases 620 (W.D.Tenn.1971) (under 30-day deadline applicable before 1972 amendment creating 90-day deadline) (30th day Sunday; complaint filed Monday held timely). Cf. Tavernaris v. Beaver Area School District, 454 F.Supp. 355, 357 (W.D.Pa.1978) (90th day Monday; complaint filed on Wednesday held timely because Title VII “should be liberally construed”). See Haire v. Calloway, 385 F.Supp. 309, 310 (E.D.Mo. 1974) (under 42 U.S.C. § 2000e-16) (30-day limit ends Saturday; complaint filed Monday held timely), vacated on other grounds, 537 F.2d 318 (8th Cir. 1976); contra, Smith v. Bailar, 22 FEP Cases 1378 (N.D.Ga. Feb. 15, 1980) (under § 2000e-16) (30th day Saturday; complaint filed on Monday held not timely). In view of the broad remedial purposes of Title VII, see Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972), we decline to extend the dictum of Joint Council Dining Car Employees, Local 370 v. Delaware, L. & W. R. Co., 157 F.2d 417, 420 (2d Cir. 1946), to bar this action. Unlike the statute at issue in Dining Car, Title VII was passed by a Congress with Rule 6(a) firmly in mind. See Simon v. CIR, 176 F.2d 230, 232 (2d Cir. 1949); Rutledge v. Sinclair Refining Co., 13 F.R.D. 477, 478 (S.D.N.Y.1953). The judgment is reversed, and the case is remanded for proceedings consistent with this opinion." }, { "docid": "243898", "title": "", "text": "Ann. § 15 — 1—29 (1976), bars prosecution of that claim. I. TITLE VII Defendant urges that plaintiff’s suit is barred by 42 U.S.C. § 2000e-5(f)(l), which requires that a civil action under Title VII be brought within 90 days after the plaintiff receives his notice of right to sue from the Equal Employment Opportunity Commission. Plaintiff received his notice of right to sue on October 23, 1978, and filed this suit on Monday, January 22, 1979 — 91 calendar days after receipt of the letter. Defendants’ argument, however, fails to take into account Rule 6(a), F.R.Civ.P., which excludes from computation any Saturday, Sunday or legal holiday when the last day of the period falls on one of those days, and extends the period to the end of the next day which is not a Saturday, Sunday or legal holiday. We see no reason why Rule 6(a) should not be applied in computing the 90-day period in a Title VII case and hold, along with other courts which have considered the question, that application of the Rule harmonizes with the intent of Congress in granting a right of action under this remedial legislation. See, e. g., Pearson v. Furnco Constr. Co., 563 F.2d 815, 818-19 (7 Cir. 1977); Haire v. Callaway, 385 F.Supp. 309 (E.D.Mo.1974), vacated on other grounds, 537 F.2d 318 (8 Cir. 1976); Burks v. Vann’s Banking Corp., 3 FEP 620 (W.D. Tenn.1971). Plaintiff’s action was, therefore, timely filed and jurisdiction under Title VII properly lodged in this court. H. THIRTEENTH AMENDMENT The thirteenth amendment to the United States Constitution declares “[that] [n]either slavery nor involuntary servitude shall exist within the United States . . . It has long been established that the amendment is “self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” Civil Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 28, 27 L.Ed. 835, 842 (1883). The purpose of the amendment was to abolish all practices involving enforced subjection akin to slavery or compulsion by the states or private individuals. See Flood v. Kuhn, 316" }, { "docid": "3800250", "title": "", "text": "(5th Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982) (Rule 6(a) applies to federal statutes). In Pearson v. Furnco Construction Co., 563 F.2d 815 (7th Cir.1977), the Seventh Circuit held that Rule 6(a) did apply in computing the 90-day period prescribed by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(l). However, the court did not apply Rule 6(a) to federal statutes generally. Instead it stated: Although the procedural rule does not directly apply to a statute of limitations, courts have at times invoked the principle of the rule as a matter of interpretation____ We think that in light of the purposes intended to be served by Title VII, it is a sound interpretation of a congressional intent that the party plaintiff is to have a full span of ninety days in which to file his action, and that [Rule 6(a) should be applied]. Unlike Title VII, however, which is remedial in purpose and should therefore be liberally construed, see Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1086 (7th Cir.1984), cert. denied, 471 U.S. 1017, 105 S.Ct. 2023, 85 L.Ed.2d 304 (1985), the purpose of the Federal Tort Claims Act is to expand government liability and is a limited waiver of sovereign immunity. Baker v. F & F Investment Co., 489 F.2d 829, 835 (7th Cir.1973); Carr v. Veterans Administration, 522 F.2d 1355, 1357 (5th Cir.1975). As such it must be strictly construed. Carr at 1357. Thus, while the Seventh Circuit applied Rule 6(a) in Pearson, it did so “in light of the purposes intended to be served by Title VII,” and could reach the opposite result when considering the question as applied to the Federal Tort Claims Act. Therefore Stewart and Hughes require that the last day this complaint could have been timely filed was October 29, 1985. Therefore plaintiffs complaint was late, even if filed on October 30. IT IS THEREFORE ORDERED that on reconsideration the court adheres to its previous decision granting defendant’s motion to dismiss. . Because November 24, 1974 was a Sunday, the court further" }, { "docid": "8580646", "title": "", "text": "matter jurisdiction because of plaintiff’s failure to comply with the requirement that a Title VII complaint be filed within ninety days after the plaintiff receives notice of the EEOC’s decision not to take action itself. 42 U.S.C. § 2000e-5(f)(l) (1982). The district court granted the motion, and plaintiff filed a timely appeal. Plaintiff, who was represented by counsel at every stage of these proceedings, offers no excuse for the delay in filing. Rather, he insists that the ninety-day period detailed in § 2000e-5(f)(l) should be extended pursuant to the Federal Rules of Civil Procedure provision concerning service by mail. See Fed.R.Civ.P. 6(e). Section 2000e-5(f)(l) provides that if the EEOC dismisses a charge or takes no action within a specified period of time it “shall notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge....” This provision has been construed liberally such that the time for filing a complaint begins to run when the plaintiff has notice of the EEOC decision; this usually occurs on the date he receives a right-to-sue letter. See, e.g., Law v. Hercules, Inc., 713 F.2d 691 (11th Cir.1983); see also Hornsby v. United States Postal Service, 787 F.2d 87, at 89-90 & n. 3 (3d Cir.1986). Indeed, the EEOC’s form right-to-sue letter itself states that a plaintiff has ninety days after receiving the letter in which to file suit. Federal Rule of Civil Procedure 6(e) states: Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period. This rule is plainly inapposite to the present case. It applies only where a time period is measured from the date of service by mail, and allows a party so served additional time to respond, in order to account for the time required for delivery" }, { "docid": "5726097", "title": "", "text": "banc). Timely filing is not a prerequisite to federal jurisdiction. Permitting suit after the period has ended would not, therefore, work an extension of our jurisdiction. Fed.R.Civ.P. 6(a) provides that [i]n computing any period of time prescribed ... the last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. Rule 6(a) “does not provide a general rule of statutory construction which the courts are bound to apply to all time periods mentioned in any statute that may come before the courts.” 2 Moore’s Federal Practice § 6.06[2] (1981). Other' courts have, however, found that Rule 6(a)’s provision should apply to Section 2000e-5(f)(l), which prescribes a 90 day time limit for filing suits against private parties: [I]n the light of the purposes intended to be served by Title VII, it is a sound interpretation of congressional intent that the party plaintiff is to have a full span of ninety days in which to file his action, and that accordingly, when the ninetieth calendar day is Saturday, Sunday, or holiday, the period does not expire until the end of the next day which is none of these three. Pearson v. Furnco Constr. Co., 563 F.2d 815, 819 (7th Cir. 1977); accord, Kane v. Douglas, Ellman, Hollyday & Ives, 635 F.2d 141, 142 (2d Cir. 1980). The court’s reasoning is persuasive and equally applicable to suits under Section 2000e-16(c). We conclude that the intent of Congress in passing Section 2000e-16(e) was to adopt the provisions of Rule 6(a) allowing a party to file suit on the day following the weekend or holiday if a time period for filing ends on a weekend or holiday. Milam also contends that she should be allowed to bring before the court her complaints of discharge because of sex and physical handicap discrimination. She did not appeal to the EEOC the denial of that complaint, she argues, because the Postal Service misled her" }, { "docid": "15703824", "title": "", "text": "filed on that date. Defendant, relying on Rust v. Quality Car Corral, Inc., 614 F.2d 1118 (6th Cir. 1980), contends that it was not. In Rust, the court held that a complaint filed July 1, 1977 was barred by the TILA statute of limitations where the installment sales agreement was entered into on July 1, 1976. Contrary to the time computation method prescribed by Fed.R.Civ.P. 6(a), the court included the day of the underlying event and excluded the last day of the time period. Under the analysis set forth in Rust, the limitations period in this case would have expired on August 15, 1979 and plaintiffs’ claims would be barred. However, we decline to follow Rust and hold that plaintiffs’ claims were timely filed. Rule 6(a) of the Federal Rules of Civil Procedure states: (a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday— Where no contrary policy is expressed in a particular statute, considerations of liberality and leniency militate in favor of Rule 6(a)’s application. Union National Bank of Wichita v. Lamb, 337 U.S. 38, 69 S.Ct. 911, 93 L.Ed. 1190 (1949); Bledsoe v. Department of Housing and Urban Development, 398 F.Supp. 315 (E.D.Pa.1975). No express policy in the TILA precludes the application of Rule 6(a)’s computation methods. Indeed, Rule 6(a) is particularly appropriate here because the TILA is a remedial statute and is to be liberally construed. Eg., Johnson v. McCrackinSturman Ford, Inc., 527 F.2d 257 (3rd Cir. 1975). Therefore, we conclude that the first day of the one year limitation period should be excluded and the last day" }, { "docid": "12398315", "title": "", "text": "inapplicable to section 546(a) of the Bankruptcy Code. . The Trustee argues that Rust is consistent with Lamb because Fed.R.Civ.P. 82 provides that the Federal Rules of Civil Procedure shall not be used to limit or extend the jurisdiction of the United States district courts and the application of Rule 6(a) to the Truth in Lending Act’s statute of limitations period would be contrary to this policy. The Trustee also relies on Kane v. Douglas, Elliman, Hollyday & Ives, 635 F.2d 141 (2d Cir.1980), where the Second Circuit held that Rule 6(a) applies to the computation of the limitations period of Title VII for filing a discriminatory employment complaint. Id. at 142. . First National also asserts that the word “applicable” in Bankruptcy Rule 9006(a) and Fed.R. Civ.P. 6(a) evinces congressional intent for these rules not to control computation of time for all federal statutes. First National believes that Fed.R.Civ.P. 6(a) was correctly applied to the computation of time for filing a certiorari petition in Lamb because the application of Rule 6(a) did not affect the substantive rights of the parties inasmuch as the cause of action had been timely filed. . In Hilliard v. United States Postal Service, 814 F.2d 325 (6th Cir.1987), the district court granted defendant’s motion to dismiss plaintiffs discrimination complaint for failure to file suit during the 30-day limitations period of 5 U.S.C. § 7703(b)(2). Plaintiff filed his complaint on the thirty-first day after the agency rendered its decision finding that the discharge was proper, the thirtieth day falling on a Sunday. This Court held that the 30-day limitations period for filing an appeal of the agency’s decision is a jurisdictional prerequisite. Id. at 327. Relying on Rust, the Court concluded that Fed.R.Civ.P. 6(a) could not be applied to extend the limitations period. . Bankruptcy Rule 5001 provides that bankruptcy courts are deemed always open for the purpose of filing any pleading or otner paper." }, { "docid": "14582483", "title": "", "text": "U.S. Postal Service, 533 F.Supp. 28 (N.D.Ga.1981), as unpersuasive, for reason that, properly construed, there is no conflict between § 2000e-5(f)(1) and Rule 6(a), and both may be applied together. See also, Burnett v. Chickasaw Area Development Commission, 662 F.2d 1210, 1213 (6th Cir. 1981) (Federal Rules of Civil Procedure apply to Title VII cases). Since the complaint was timely filed, and the pleadings and affidavits raise genuine issues of material fact on the merits of the Plaintiff’s Title VII claims against the Teamsters, the motion for summary judgment by the Teamsters must be, and is, overruled. 4. Count IV: MOTIONS OVERRULED Both Defendants have moved for summary judgment with respect to Count IV. The fourth count of the amended complaint alleges that both Defendants violated 42 U.S.C. § 1981, in that Plaintiff was not treated similarly to other employees in his discharge and grievance, “on account of his race.” Defendants argue that a complaint under § 1981 must plead intentional discrimination on the basis of race, and that Count IV does not meet this requirement. This Court agrees with the Defendants that discriminatory intent must be pled in a § 1981 action. Although definitive authority from the Sixth Circuit on this issue is lacking, see, German v. Killeen, 495 F.Supp. 822, 827 n.10 (E.D.Mich.1980), the clear trend in other Circuits, which this Court finds persuasive, is to require § 1981 plaintiffs to allege and to prove such intent. See, Croker v. Boeing Co., 662 F.2d 975 (3rd Cir. 1981) (en banc); Guardians Assoc, v. Civil Service Commissions, 633 F.2d 232 (2d Cir. 1980); Craig v. Los Angeles County, 626 F.2d 659 (9th Cir. 1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1364, 67 L.Ed.2d 345 (1981). However, this Court cannot agree with the Defendants that Count IV of the amended complaint is inadequately pleaded. The count clearly states that the Defendants allegedly discriminated against Plaintiff “on account of his race.” Construing this language most strongly in favor of the Plaintiff, the count sufficiently implies that the alleged discriminatory conduct was undertaken with racial intent. Given the sufficiency of the" }, { "docid": "12353801", "title": "", "text": "Oct. 8, 2003) (holding plaintiffs filing of EEOC complaint timely under Rule 6(a) because “Fed.R.Civ.P. 6 applies to time calculations made pursuant to [Title VII] section 2000e[,] et seq. of Title 42”); Bethelmie v. New York City Health and Hospitals Corp., No. 00 CIV. 3707(FM), 2001 WL 863424, at *2 (S.D.N.Y. July 31, 2001) (in the context of Americans with Disabilities Act (“ADA”), “pursuant to Rule 6(a), Saturdays and Sundays must be included in calculating whether Bethelmie’s ADA claim was timely filed with the EEOC”); Bonebrake v. West Burlington Ind. Sch. Dist., No. 3-99-CV-90209, 2001 WL 901265, *4 (S.D.Iowa Aug. 9, 2001) (“The Court holds that the ADEA is an applicable statute for purposes of Rule 6(a) and therefore the 300 day filing period may not expire on a Sunday.”). Rule 6(a)(1)(C) explicitly provides that in computing time periods, one must “include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” Fed.R.Civ.P. 6(a)(1)(C) (emphasis added). Courts have therefore found timely an EEOC filing on a Monday where the deadline would otherwise have been Sunday. See, e.g., Bonebrake, 2001 WL 901265, *4 (holding “the 300 day filing period” for filing an EEOC Complaint in an ADEA action “may not expire on a Sunday” so complaint filed on Monday, 301st day, was timely). See also Kane v. Douglas Elliman, Hollyday & Ives, 635 F.2d 141, 142 (2d Cir.1980) (applying Rule 6(a) “in light of the purposes intended to be served by Title VII” and allowing plaintiff the “full span” of days to file Title VII complaint in federal court on Monday, where last day to file would otherwise have been a Sunday). It is clear, therefore, that if the timeliness of Bagley’s first EEOC complaint turned solely upon whether her March 4, 2013 filing fell within the 300-day limit, the filing was timely. Accordingly, in order for Defendants to succeed on their contention that Bagley’s first EEOC filing was untimely, they must" }, { "docid": "5726096", "title": "", "text": "the complaint for lack of subject matter jurisdiction. It stated that 42 U.S.C.A. § 2000e-16(c) was a jurisdictional statute requiring a plaintiff to file suit within 30 days of receipt of an EEOC notification letter. Since the statute was jurisdictional, the court ruled that it had no power to extend the time limit even if the limitations period fell on a Sunday. We reverse. The district court relied on the former Fifth Circuit holding in Eastdale v. Tennessee Valley Auth., 553 F.2d 364, 368-69 (5th Cir.), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977), in ruling that Section 2000e-16(c) was jurisdictional. That holding no longer is good law. See Zipes v. Independent Fed’n of Flight Attendants, - U.S. -, ---, 102 S.Ct. 1127, 1129-35, 71 L.Ed.2d 234 (1982); Sessions v. Rusk State Hosp., 648 F.2d 1066, 1069 (5th Cir. 1981) (regarding 42 U.S.C.A. § 2000e-5(f)(1), analogous statute of Title VII for suits against private parties); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 587-95, 591 n.15 (5th Cir. 1981) (en banc). Timely filing is not a prerequisite to federal jurisdiction. Permitting suit after the period has ended would not, therefore, work an extension of our jurisdiction. Fed.R.Civ.P. 6(a) provides that [i]n computing any period of time prescribed ... the last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. Rule 6(a) “does not provide a general rule of statutory construction which the courts are bound to apply to all time periods mentioned in any statute that may come before the courts.” 2 Moore’s Federal Practice § 6.06[2] (1981). Other' courts have, however, found that Rule 6(a)’s provision should apply to Section 2000e-5(f)(l), which prescribes a 90 day time limit for filing suits against private parties: [I]n the light of the purposes intended to be served by Title VII, it is a sound interpretation of congressional intent that the party plaintiff" }, { "docid": "243897", "title": "", "text": "MEMORANDUM OF DECISION KEADY, Chief Judge. This suit was instituted on January 22, 1979, by plaintiff Will Jordan as a class action against defendant Lewis Grocer Company (Lewis), alleging discriminatory discharge of plaintiff because of his race and a general policy and practice of racial discrimination by Lewis in its employment practices, including hiring, discharging, promotion and all other terms and conditions of employment. Plaintiff alleges causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and § 1981, 28 U.S.C. §§ 2201 and 2202 and the thirteenth amendment to the Constitution of the United States. Jurisdiction is based on 42 U.S.C. § 2000e et seq. and 28 U.S.C. § 1343. Defendant has moved the court to dismiss or, in the alternative, grant summary judgment on plaintiff’s Title VII allegations for lack of jurisdiction, plaintiff’s thirteenth amendment claim for failure to state a claim upon which the court could grant relief, and plaintiff’s § 1981 claim on the ground that the applicable statute of limitations, Miss.Code Ann. § 15 — 1—29 (1976), bars prosecution of that claim. I. TITLE VII Defendant urges that plaintiff’s suit is barred by 42 U.S.C. § 2000e-5(f)(l), which requires that a civil action under Title VII be brought within 90 days after the plaintiff receives his notice of right to sue from the Equal Employment Opportunity Commission. Plaintiff received his notice of right to sue on October 23, 1978, and filed this suit on Monday, January 22, 1979 — 91 calendar days after receipt of the letter. Defendants’ argument, however, fails to take into account Rule 6(a), F.R.Civ.P., which excludes from computation any Saturday, Sunday or legal holiday when the last day of the period falls on one of those days, and extends the period to the end of the next day which is not a Saturday, Sunday or legal holiday. We see no reason why Rule 6(a) should not be applied in computing the 90-day period in a Title VII case and hold, along with other courts which have considered the question, that application of" }, { "docid": "5485854", "title": "", "text": "by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. Under Rule 6(a), the 90-day period for filing Kane’s complaint did not end on Sunday, April 27; instead, it ran “until the end of the next day,” Monday, April 28. Thus Kane’s complaint was properly filed. Appellee contends that Rule 6(a) does not apply to this case because Rule 1, Fed.R.Civ.P., provides: “These rules govern the procedure in the United States district courts in all suits of a civil nature . . . ” The argument is that, until a complaint is properly filed, there is no “suit of a civil nature,” and thus the Rules, including Rule 6(a), do not apply. The argument has been almost uniformly rejected in Title VII actions. In Pearson v. Furnco Constr. Co., 563 F.2d 815, 818-19 (7th Cir. 1977), for example, the 90th day after the EEOC Notice was Sunday, September 29. Plaintiff’s complaint was filed on Monday, September 30. The court stated that the spirit of Rule 6(a) governed, and held the filing timely: We think that in the light of the purposes intended to be served by Title VII, it is a sound interpretation of congressional intent that the party plaintiff is to have a full span of ninety days in which to file his action, and that accordingly, when the ninetieth calendar day is a Saturday, Sunday, or holiday, the period does not expire until the end of the next day which is none of these three. Accord, Bailey v. Boilermakers Local 667, 480 F.Supp. 274, 282 (N.D.W.Va.1979) (90th day Sunday; complaint filed on Monday held timely); Menn v. Amstar Corp., 476 F.Supp. 303, 306" }, { "docid": "14582482", "title": "", "text": "by 42 U.S.C. § 2000e-5(f)(1). Plaintiff received the letter on September 8, 1980, and filed suit in this Court on December 8, 1980, which he concedes is some ninety-one days later. Defendant argues that the failure to file within the statutory maximum limit of ninety days deprives this Court of jurisdiction over the matter. Plaintiff, however, points out that under Fed.R.Civ.P. 6(a), which governs the computation of time prescribed by “any applicable statute,” if the last day of a period falls on a Sunday, the period of time runs until the next day. December 7, 1980, was a Sunday, and the suit was filed the next day. This Court agrees with the Plaintiff that this procedure complied with the statute, as construed with Rule 6(a). Several courts have applied Rule 6(a) to similar Title VII situations. See, e.g., Pearson v. Furnco Construction Co., 563 F.2d 815, 818-19 (7th Cir. 1977); Jordan v. Lewis Grocer Co., 467 F.Supp. 113, 115 (N.D.Miss.1979). In so applying Rule 6(a), this Court rejects authority to the contrary, see, Milam v. U.S. Postal Service, 533 F.Supp. 28 (N.D.Ga.1981), as unpersuasive, for reason that, properly construed, there is no conflict between § 2000e-5(f)(1) and Rule 6(a), and both may be applied together. See also, Burnett v. Chickasaw Area Development Commission, 662 F.2d 1210, 1213 (6th Cir. 1981) (Federal Rules of Civil Procedure apply to Title VII cases). Since the complaint was timely filed, and the pleadings and affidavits raise genuine issues of material fact on the merits of the Plaintiff’s Title VII claims against the Teamsters, the motion for summary judgment by the Teamsters must be, and is, overruled. 4. Count IV: MOTIONS OVERRULED Both Defendants have moved for summary judgment with respect to Count IV. The fourth count of the amended complaint alleges that both Defendants violated 42 U.S.C. § 1981, in that Plaintiff was not treated similarly to other employees in his discharge and grievance, “on account of his race.” Defendants argue that a complaint under § 1981 must plead intentional discrimination on the basis of race, and that Count IV does not meet this" }, { "docid": "8580645", "title": "", "text": "OPINION OF THE COURT PER CURIAM. In this employment discrimination case, the district court granted defendant’s motion to dismiss the complaint as untimely filed. We will affirm. The relevant facts are not in dispute. On April 17,1984, plaintiff Gary K. Mosel filed a charge against defendant Hills Department Store, Inc. with the Equal Employment Opportunity Commission (EEOC), alleging that he was terminated from his job in retaliation for filing earlier sex discrimination complaints against defendant. On December 3, 1984, plaintiff, through his attorney, requested that the EEOC issue a right-to-sue letter permitting suit in federal court pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3, 2000e-5 (1982). The EEOC issued the requested letter on December 31, 1984, and plaintiff’s attorney received it on January 2, 1985. Plaintiff’s Title VII complaint was filed on April 3, 1985, ninety-one days after receipt of the right-to-sue letter. Defendant filed a motion under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint as well as plaintiff’s amended complaint. Defendant averred that the district court lacked subject matter jurisdiction because of plaintiff’s failure to comply with the requirement that a Title VII complaint be filed within ninety days after the plaintiff receives notice of the EEOC’s decision not to take action itself. 42 U.S.C. § 2000e-5(f)(l) (1982). The district court granted the motion, and plaintiff filed a timely appeal. Plaintiff, who was represented by counsel at every stage of these proceedings, offers no excuse for the delay in filing. Rather, he insists that the ninety-day period detailed in § 2000e-5(f)(l) should be extended pursuant to the Federal Rules of Civil Procedure provision concerning service by mail. See Fed.R.Civ.P. 6(e). Section 2000e-5(f)(l) provides that if the EEOC dismisses a charge or takes no action within a specified period of time it “shall notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge....” This provision has been construed liberally such that the time for filing a complaint begins to run when the plaintiff has notice of the" }, { "docid": "5485853", "title": "", "text": "PER CURIAM: Estelle Kane filed a complaint with the Equal Employment Opportunity Commission on October 13, 1978. It alleged that Kane’s former employer, Douglas, Elliman, Hollyday & Ives, had discriminated against Kane on the basis of her gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. On January 11, 1980, the EEOC sent Kane a “Notice of Right to Sue.” The Notice informed Kane that the EEOC had decided not to sue Douglas Elliman on Kane’s behalf, and that if Kane wished to sue her former employer, she had 90 days from receipt of the Notice to do so. Kane received the Notice on January 28, 1980. She filed her complaint 91 days later, on April 28, 1980. The 90th day, April 27, was a Sunday, and Kane filed the complaint the following day-Monday. The district court dismissed her suit as time-barred under 42 U.S.C. § 2000e-5(f)(1). Rule 6(a), Fed.R.Civ.P., provides in part: In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. Under Rule 6(a), the 90-day period for filing Kane’s complaint did not end on Sunday, April 27; instead, it ran “until the end of the next day,” Monday, April 28. Thus Kane’s complaint was properly filed. Appellee contends that Rule 6(a) does not apply to this case because Rule 1, Fed.R.Civ.P., provides: “These rules govern the procedure in the United States district courts in all suits of a civil nature . . . ” The argument is that, until a complaint is properly filed, there is no “suit of a" } ]

[ { "docid": "18975566", "title": "", "text": "of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.... ” Plaintiff is the named beneficiary of the optional life insurance plan and she is seeking benefits under the plan, she thus has the right to seek relief under § 1132(a)(1)(B). In Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), the Supreme Court explained that the “ ‘catchall’ provisions [§ 1132(a)(3) and § 1132(a)(5) ] act as a safety net, offering appropriate equitable relief for injuries caused by violations that § 502 [29 U.S.C. § 1132] does not elsewhere adequately remedy.” The Supreme Court granted relief under § 1132(a)(3) to the plaintiffs in Varity Corp. after determining that they could not proceed under any other section of ERISA. Id. at 515, 116 S.Ct. 1065. However, relying on the Supreme Court’s reasoning, courts have denied relief under “catchall” provisions of ERISA when the plaintiff could have brought a claim for denial of benefits under § 1132(a)(1)(B). See Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 615 (6th Cir.1998)(“Because § 1132(a)(1)(B) provides a remedy for Wilkins’s alleged injury that allows him to bring a lawsuit to challenge the plan administrator’s denial of benefits to which he believes he is entitled, he does not have a right to a cause of action for breach of fiduciary duty pursuant to § 1132(a)(3).); Schluter v. Principal Life Insurance Co., 2001 WL 476589 at *4 (N.D.Ill.2001)(“Schluter could not seek equitable relief under § 502(a)(3) because she is provided adequate relief by her right to bring a claim for denial of benefits under § 502(a)(1)(B)”); White v. Sundstrand Corp., 2000 WL 713739 at *12 (N.D.Ill.2000); Frank v. Ameritech Corp., 1999 WL 1011107 at *4 (N.D.Ill.1999). Plaintiff argues that she should not be precluded from seeking relief under § 1132(a)(3) because she may not be able to obtain benefits under § 1132(a)(1)(B) if Clark’s life insurance policy does exclude benefits for those who commit suicide within two years of enrollment. Plaintiff attempts to" } ]

[ { "docid": "23452498", "title": "", "text": "TACHA, Circuit Judge. Plaintiffs appeal the district court’s order granting defendants’ motion to dismiss for lack of personal jurisdiction or, in the alternative, to transfer for improper venue. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and reverse. I. At the time of the events in this case, plaintiff Jennifer McCluskey lived in Tennessee with her guardian, plaintiff Robert Peay. Peay’s employer, BellSouth Telecommunications, Inc. (BST), provided both Peay and McCluskey with insurance through defendant BellSouth Medical Assistance Plan (“Plan”). BST is headquartered in Atlanta, Georgia, and operates in nine southeastern states. Defendant Blue Cross & Blue Shield of Alabama (BCBS), located in Birmingham, Alabama, provided third-party administration services to the Plan. In 1993, McCluskey received in-patient psychiatric care at plaintiff Brightway Adolescent Hospital (“Brightway”), a Utah facility. Plaintiff Delbert Goates, a Utah resident, was McCluskey’s treating physician. The Plan’s utilization review agent precertified McCluskey’s treatment, and the Plan and BCBS paid Goates for a portion of McCluskey’s care. However, the Plan refused to pay 100% of the cov ered charges because McCluskey did not use a preferred provider’s services. McCluskey and Peay executed an assignment of benefits in favor of Brightway and Goates. McCluskey, Peay, Brightway, and Goates then sued the Plan and BCBS in Utah federal district court for a determination of medical benefits due under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(B). Plaintiffs served a summons and the complaint on BCBS in Birmingham, and the Plan waived service of process. Pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3), defendants moved to dismiss for lack of jurisdiction or, in the alternative, to transfer for improper venue. The district court granted defendants’ motion to dismiss, and plaintiffs appealed. II. A. We review de novo the district court’s legal determination that it lacks personal jurisdiction over defendants. Application to Enforce Admin. Subpoenas Duces Tecum of the SEC v. Knowles, 87 F.3d 413, 415 (10th Cir.1996). The district court found that neither the Plan nor BCBS has an address, an office, a statutory agent, a telephone listing, employees, active Plan participants, or" }, { "docid": "4137950", "title": "", "text": "MEMORANDUM OPINION WILLIAMS, District Judge. This case arises out of a subrogation dispute between Plaintiff Chrystele McKandes (“Mckandes”or “Plaintiff’), and Defendants Blue Cross and Blue Shield Association (“BCBS”), Group Hospitalization and Medical Services, Inc. (“GHMS”) and CapitalCare, Inc. (“CapitalCare”) (collectively referred to as “Defendants”). Pending before this Court is Plaintiffs Motion to Remand [23-1]. The Motion and Oppositions to the Motion have been fully briefed and are now ripe for review. The Court has reviewed the pleadings and the applicable law and has determined that no hearing is deemed necessary. See D. Md. R. 105(6). For the reasons stated below, the Court will GRANT Plaintiffs Motion and will remand the case to the Circuit Court for Prince George’s County. I. FACTUAL BACKGROUND On March 3, 1999, Plaintiff was involved in a automobile accident. In September, 1999, she received $20,000 from State Farm. Plaintiff alleges that BCBS asserted a lien on Plaintiffs recovery, and that she paid BCBS $3,367.94 to resolve the lien. Plaintiff claims further that on September 17,1999, she paid $187.37 to BCBS. Thereafter, Plaintiff filed a class action suit against Defendants in the Circuit Court for Prince George’s County, alleging, inter alia, common law claims based on Defendants’ alleged violation of the Maryland Health Maintenance Organization Act (“The Maryland HMO Act”). Plaintiff filed the Complaint on behalf of a class of all persons who (1) are or have been members or insureds of Blue Cross; (2) have received medical or health care treatment or services from Blue Cross; and (3) have been notified by Blue Cross that it had a lien against or a subrogation interest in any monies that the members or insureds had received or would receive from a third party. Defendants subsequently removed the case to this Court. II. PROCEDURAL BACKGROUND On May 22, 2001, this Court stayed this case pending resolution by the United States Court of Appeals for the Fourth Circuit of Riemer v. Columbia Medical Plan. After the Court of appeals decided Riemer, the Court lifted the stay on January 15, 2003. III. ANALYSIS A. Maryland’s Law of Subrogation After a class" }, { "docid": "23449254", "title": "", "text": "holding that “the existence of an [ERISA] plan is a critical factor in establishing liability” for the state law causes of action asserted by Dr. Hyman. We conclude that, as such, they are conflict preempted. III. CONCLUSION The district court’s denial of the Plaintiffs’ third motion for leave to amend their complaint was not an abuse of discretion. The motion was untimely in the sense of coming so far into the progress of the case and so close to the scheduled commencement of trial. Permitting the amendment would have been unfairly prejudicial to BCBS and Dr. Gengelbach by effecting so profound a shift in the nature of the suit. And, the district court’s grant of summary judgment to BCBS on the Plaintiffs’ ERISA and state law claims was clearly proper and free of reversible error. The judgments and orders of the district court are, in all respects, AFFIRMED. . BCBS's decision was the result of a utilization review by BCBS's Physician Advisory Council, a ten-physician board that examined Dr. Hyman’s office notes, the claim form submitted by him, and his description of the prescribed therapy. . These cases were Moore v. Ashland Chem., 151 F.3d 269 (5th Cir.1998) (en banc) and Pick v. Am. Med. Sys., Inc., 198 F.3d 241 (5th Cir.1999) (unpublished). In Moore, we effectively affirmed a district court’s exclusion of a physician’s opinion on the causal relationship between the plaintiff’s exposure to industrial chemicals and his pulmonary illness. 151 F.3d at 279. Likewise, in Pick, we ultimately concluded that Dr. Hyman's \"inability to objectively demonstrate his method’s accuracy,” slip op. at 2, 6, supported the exclusion of his medical diagnosis that a patient suffered from SCD. We also affirmed the Daubert exclusion of Dr. Hyman's opinion testimony that the defendant’s penile prosthesis could cause SCD. Id. at 2, 7. We further held that the district court could exclude Dr. Deming's opinion that the plaintiff suffered from SCD, because Dr. Deming reached his conclusion by examining medical slides prepared using Dr. Hyman’s \"scientifically unreliable” method. Id. at 7. See Pick v. Am. Med. Sys., Inc., 958 F.Supp. 1151," }, { "docid": "8175180", "title": "", "text": "MORAN, District Judge. Plaintiffs filed this complaint charging the defendants with violations of section 1 of the Sherman Act, 15 U.S.C. § 1. They alleged various pendent state claims as well. They complain that their practice as nurse anesthetists at a central Illinois hospital has been unlawfully restricted. Defendants moved to dismiss on a variety of grounds and the district court did dismiss, concluding that plaintiffs had not alleged a sufficient nexus with interstate commerce to invoke Sherman Act jurisdiction. An attempted amendment failed for the same reason and this appeal followed. We now affirm, but on different grounds. According to the complaint, the three individual plaintiffs are certified registered nurse anesthetists (CRNAs) and the corporate plaintiff, BCB Anesthesia Care Ltd. (BCB), is a business equally owned by the three of them. CRNAs compete with physician anesthesiologists (MDAs) and provide anesthesia services at lower cost. The defendants are The Passavant Memorial Area Hospital Association (Passavant) — the only acute care general hospital in Jacksonville, Illinois; MDA Peter Roodhouse; Clarence Lay, the hospital’s chief executive officer; and Dr. Erie Giebelhausen, a Jacksonville doctor with staff privileges at Passavant. According to the complaint the individual plaintiffs were employed as anesthetists at the hospital prior to July 28, 1991. During the first half of that year they negotiated an agreement with Passavant, effective July 29, 1991, whereby BCB provided anesthesia services to hospital patients, and billed them directly at $35 per unit. The hospital billed separately at $11 per unit, which plaintiffs claim was a violation of the BCB contract. When the CRNAs were employees the hospital had billed at $17 per unit for a portion of such services. During that time Dr. Rood-house also provided anesthesia services as an independent contractor, with the billing done separately at $28 per unit. During the last five months of 1991, BCB and the hospital anesthetists (apparently there were other anesthetists on staff) performed all but three anesthesia procedures at Passavant. Dr. Roodhouse, however, plaintiffs allege, billed patients and third party payers for anesthesia services he had not performed, in an effort to injure BCB. This" }, { "docid": "7283008", "title": "", "text": "Opinion for the court filed by Circuit Judge HENDERSON. KAREN LECRAFT HENDERSON, Circuit Judge. Alistaire Moore, the daughter of William and Judith Moore (collectively, Moores), was severely injured in an automobile accident and as a result required extensive medical care. She is the beneficiary of a health insurance plan administered by CapitalCare, Inc. and Blue Cross & Blue Shield of the National Capital Area (BCBS) (collectively, CC/BCBS). CC/ BCBS paid over $200,000 in accident-related benefits on Alistaire’s behalf. Alistaire also recovered a $1.3 million settlement for her injuries from a personal injury lawsuit. In 1994, the Moores instituted this action under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq., alleging that CC/BCBS failed to pay benefits due under the plan. CC/BCBS . countersued under ERISA, claiming that, pursuant to a subrogation clause in the plan, it was entitled to reimbursement because Alistaire received compensation from a third party for her injuries. The district court awarded the Moores $72,083.52 in unpaid benefits, awarded CC/BCBS an equitable lien of $194,274.72 against the settlement funds and denied both parties’ motions for prejudgment interest and attorney’s fees. The Moores appeal the grant of the equitable lien against the settlement proceeds claiming that, because Alistaire was not “made whole” for her injuries, CC/BCBS are not entitled to reimbursement. We disagree, concluding that Alistaire’s health insurance plan expressly provides for reimbursement in the event of partial recovery from a third party. Both the Moores and CC/BCBS appeal the denial of prejudgment interest and attorney’s fees, which we reverse and remand as to all parties. I. In 1991, the Moores purchased a group benefit plan (ERISA plan) from BCBS and its wholly-owned subsidiary, CapitalCare. The ERISA plan included various contracts that together provided “dual option coverage.” The ERISA plan’s dual option coverage allowed an insured to seek medical attention at his option either from the HMO side through CapitalCare or from the indemnity side through BCBS. The ERISA plan also included a subrogation clause, by which an injured beneficiary agreed to reimburse CC/BCBS for medical expenses the ERISA plan paid" }, { "docid": "23218183", "title": "", "text": "BURTON R. LIFLAND, Bankruptcy Judge. This matter is before the Court on the Motion of James P. Hassett, the Trustee (“the Trustee”) of O.P.M. Leasing Services, Inc. (“OPM”) for summary judgment pursuant to Federal Rule of Civil Procedure 56 and Bankruptcy Rule 7056 to recover the sum of $122,121.38, plus interest thereon, from the defendant Blue Cross and Blue Shield of Greater New York (“BCBS”). BCBS has cross-moved for summary judgment dismissing the Trustee’s claim and for related relief. The instant adversary proceeding within this Chapter 11 case concerns an escrow agreement between OPM and BCBS under which BCBS received $122,121.38 on February 13, 1981. The issue presented is whether the release of this money was a transfer of property of the debtor which the Trustee can avoid under §§ 547 and 544 of the Bankruptcy Reform Act of 1978 (“the Code”). I. Statement of Facts OPM, the debtor herein, is engaged in the business of buying, selling and leasing new and used computers and related equipment. On March 11, 1981, OPM filed a voluntary petition for reorganization under Chapter 11 of the Code. Pursuant to 11 U.S.C. § 151104, the reorganization Trustee was appointed on March 27, 1982. On or about October 5, 1976, Dav-Na Associates (“Dav-Na”), a general partnership of Myron S. Goodman and Mordecai Weissman, the principals of OPM, entered into a lease agreement (the' “Lease”) with BCBS whereby Dav-Na agreed to lease certain computer and related equipment to BCBS for a period of 90 months. Section 17 of the Lease gave BCBS the right to terminate the lease at any time after 48 rental payments had been made, upon 120 days prior written notice, which notice could be given at any time after 44 monthly rental payments had been made (“the early termination option”). In the event that BCBS elected to exercise the early termination option, BCBS would become obligated to pay Dav-Na a specified percentage of the original purchase price of the leased equipment (“the termination payment”), as set forth in the Schedule of Termination Values, annexed to the Lease. Dav-Na was obligated, upon receipt" }, { "docid": "23449233", "title": "", "text": "BCBS’s objection, the district court permitted the Plaintiffs to supplement and amend their complaint a second time to add state law causes .of action for unfair trade practices, intentional interference with contract, and defamation. Discovery continued until April 1998, when the district court closed the case administratively until we ruled on two appeals that were pending. In February 2001, the Plaintiffs filed a motion to reopen this case, and shortly thereafter moved, for a third time, to supplement and amend their complaint. This time, the Plaintiffs proposed to dismiss Mrs. Hyman as a plaintiff and to add BCBS Medical Director, Dr. James Gengelbach, as a defendant. In the proposed amendment, the Plaintiffs alleged that Dr. Gengelbach (1) breached his duty of care under Louisiana state law, (2) conspired to retaliate against Dr. Hyman, (3) committed unethical practices, and (4) intentionally caused Mayeaux injury. The Plaintiffs further alleged that BCBS (1) was liable for Dr. Gengelbach’s actions under the theory of respondeat superior, (2) breached an implied warranty, and (3) breached its duty of good faith and fair dealing. Importantly, in their proposed amended complaint, the Plaintiffs specifically disavowed any claim against BCBS for denial of benefits. The magistrate judge denied leave to amend; and, on review of the magistrate judge’s order, the district court affirmed. BCBS filed three separate summary judgment motions regarding the Plaintiffs’ state and federal causes of action. Relying on ERISA preemption, the district court granted summary judgment to BCBS on all the Hymans’ claims. The district court also ruled that Mayeaux’s denial-of-benefits claim was governed by ERISA and that there was no genuine issue of material fact regarding whether BCBS abused its discretion in denying coverage. The district court therefore granted summary judgment in favor of BCBS and dismissed the remainder of Mayeaux’s state law claims as preempted. The Plaintiffs timely filed their notice of appeal. II. ANALYSIS A. STANDARD OF REVIEW We review the district court’s denial of leave to amend a complaint under Federal Rule of Civil Procedure 15 for abuse of discretion. Because of the liberal pleading presumption underlying Rule 15(a), we have" }, { "docid": "7283009", "title": "", "text": "against the settlement funds and denied both parties’ motions for prejudgment interest and attorney’s fees. The Moores appeal the grant of the equitable lien against the settlement proceeds claiming that, because Alistaire was not “made whole” for her injuries, CC/BCBS are not entitled to reimbursement. We disagree, concluding that Alistaire’s health insurance plan expressly provides for reimbursement in the event of partial recovery from a third party. Both the Moores and CC/BCBS appeal the denial of prejudgment interest and attorney’s fees, which we reverse and remand as to all parties. I. In 1991, the Moores purchased a group benefit plan (ERISA plan) from BCBS and its wholly-owned subsidiary, CapitalCare. The ERISA plan included various contracts that together provided “dual option coverage.” The ERISA plan’s dual option coverage allowed an insured to seek medical attention at his option either from the HMO side through CapitalCare or from the indemnity side through BCBS. The ERISA plan also included a subrogation clause, by which an injured beneficiary agreed to reimburse CC/BCBS for medical expenses the ERISA plan paid if he recovered compensation from a third party for his injuries. On September 10, 1992, Alistaire Moore sustained life-threatening injuries when the chauffeured car in which she was a passenger crashed. Her resulting medical care was lengthy and expensive. She is a beneficiary under the ERISA plan. After several years of wrangling with CC/BCBS over Alistaire’s healthcare expenses, the Moores initiated this lawsuit against CC/ BCBS in 1994. The suit, brought under section 502(a)(1)(B) of ERISA, see 29 U.S.C. § 1132(a)(1)(B), sought unpaid benefits allegedly due under the ERISA plan. During discovery, CC/BCBS learned that Alistaire had obtained a $1.3 million settlement from a personal injury suit that was filed on her behalf against the chauffeur and his insurers. CC/BCBS believed that the proceeds of the settlement were held in an irrevocable trust for the benefit of Alistaire M. Moore (Trust) with Judith Deitz as the named trustee. CC/BCBS then filed a counterclaim against the Moores, asserting their subrogation claim. CC/BCBS also filed a third party complaint against Alistaire M. Moore, the Trust and Judith" }, { "docid": "23449241", "title": "", "text": "Mayeaux insists that the letter from BCBS’s general counsel inviting a second opinion was a contractual offer which, when she accepted it by tendering Dr. Deming’s report, created a binding obligation on BCBS’s part to provide benefits. Second, Mayeaux challenges BCBS’s interpretation of the Adler Plan as precluding coverage for Dr. Hyman’s prescribed treatment as investigative. 1. Letter Contract Following BCBS’s denial of Mayeaux’s pre-authorization request, counsel for the parties exchanged a series of letters discussing the basis for BCBS’s decision. In one of these letters to Mayeaux’s lawyer, BCBS’s general counsel stated: Blue Cross and Blue Shield of Louisiana, as an insurer, is not obligated to pay for medical treatment which, in our sole discretion, is not medically appropriate. Further, we are not obligated to pay for the “trial and error” practice of medicine. It may be true that Dr. Hyman’s treatment is “good medicine”; however, the manufacturer of the medication states otherwise and the terms of our subscriber contract allow us to deny benefits for this reason. Finally, I would like to make- it clear that we are not closed-minded regarding this issue. We have urged our subscriber to seek the advice of another physician and, if that physician agrees that Dr. Hyman’s treatment is appropriate, then we will continue to pay claims. Ignoring everything but the final sentence quoted, Mayeaux argues that this statement was a legal offer, which she accepted by submitting the concurring medical opinion of Dr. Deming. She contends that the effect of the letter was “that the health insurer [BCBS] gave up its discretionary authority to determine whether the benefits were appropriate (medically necessary).” In granting summary judgment in BCBS’s favor, the district court observed that “even if that claim was not preempted by ERISA, counsel’s letter attempting amicable settlement of an issue that was clearly headed towards litigation did not create any contractual relationship between the principles [sic ] unless those principles [sic] expressly gave the attorney authority to do so.” Relying on Article 2997 of the Louisiana Civil Code, which requires a principal to give authority “expressly” before a mandatary (agent)" }, { "docid": "7445062", "title": "", "text": "a settlement, judgment, or other payment relating to the accidental injury or illness from another person, firm, corporation, organization or business entity paid by, or on behalf of, the person or entity who allegedly caused the injury or illness, the Covered Person agrees to reimburse the Plan in full, and in first priority, for any medical expenses paid by the Plan relating to the injury or illness. BCBS Letter Br., Exh. B; BR1-1 at 3. BCBS has alleged that the Carillos received a settlement of $200,000 in connection with the June 2002 accident and that they have refused to reimburse the Mohawk Plan for the medical expenses it paid on their behalf. BR1-1 at-4. In February 2005, BCBS brought suit pursuant to § 1132(a)(3), seeking enforcement of the subrogation and reimbursement provision through “equitable relief, including but not limited to, restitution, imposition of a constructive trust, and equitable lien.” BR1-1 at 5. BCBS also sought a temporary restraining order and a preliminary injunction preventing the Carillos from dissipating the settlement funds. The court granted a temporary restraining order but deferred ruling, on the preliminary injunction pending further briefing by the parties. Prior to any ruling, the Carillos filed a motion to dismiss asserting that the district court lacked jurisdiction- because B'CBS’s allegations “fail[ed] to state a claim for' equitable relief under 29 U.S.C.A. § 1132(a)(3).” BR1-24 at 8. BCBS responded with a motion for summary judgment. The court addressed all three motions in one order. Also adopting the reasoning of the Sixth and Ninth Circuits, the court concluded that BCBS’s claim “regardless of whether it is styled as a claim for a constructive trust, for equitable restitution, or for an equitable lien, simply seeks to enforce a provision of a plan document that would require Defendants to pay money.” Id. at 17-18. It further concluded that “[s]uch a claim is not equitable in nature, and is not ‘appropriate equitable relief for purposes of § 1132(a)(3).” Id. at 18. Alternatively, the court stated that, even undfer the alternative interpretation of Knudson adopted by a majority of circuits at the time, be" }, { "docid": "12108975", "title": "", "text": "LAY, Chief Judge. Dr. Ruben Thorbus sought injunctive relief against the Secretary of the United States Department of Health and Human Services (HHS) to bar his exclusion as a participating physician in the Medicare program. He asserts jurisdiction in the district court based on 42 U.S.C. § 405(g) (1982) and 28 U.S.C. §§ 1331, 1361 (1982). The district court dismissed the complaint on the ground that the court lacked jurisdiction because Dr. Thorbus failed to exhaust his administrative remedies as required by 42 U.S.C. § 405(g). This court granted Dr. Thorbus’s motion for a stay from exclusion pending appeal. Dr. Thorbus is a physician in rural northwestern Minnesota. Sixty percent of his clinic patients are Medicare or Medicaid recipients and fifteen percent are covered by Blue Cross and Blue Shield (BCBS). BCBS has been appointed by HHS to administer the Medicare/Medicaid program in Minnesota. Acting in its capacity as a Medicare administrator, BCBS requested reviews in 1983 of some of Dr. Thorbus’s cases by a Peer Review Organization (PRO) and a medical consultant. Both reviews concluded, inter alia, that in certain cases in 1983 and 1984, Dr. Thorbus had overused particular diagnostic endoscopic procedures. BCBS referred the matter to the Office of Inspector General (OIG) of HHS. In December of 1983 HHS placed all of Dr. Thorbus’s claims for Medicare reimbursement on a program of review prior to payment. In October of 1986 OIG notified him that: (1) it was proposing to exclude him from reimbursement under the Medicare program for ten years; and (2) he had a right either to submit documentary evidence and written argument to OIG or to request an opportunity to present oral argument and evidence to an OIG official. Dr. Thorbus chose the latter alternative and, with his attorney, made an oral presentation and submitted written documentation to an OIG official in January of 1987. By letter dated October 30, 1987, OIG notified Dr. Thorbus that it was excluding him from Medicare reimbursement for five years, and that it would be publishing notice of his exclusion. He was notified that if he was dissatisfied with" }, { "docid": "7283010", "title": "", "text": "if he recovered compensation from a third party for his injuries. On September 10, 1992, Alistaire Moore sustained life-threatening injuries when the chauffeured car in which she was a passenger crashed. Her resulting medical care was lengthy and expensive. She is a beneficiary under the ERISA plan. After several years of wrangling with CC/BCBS over Alistaire’s healthcare expenses, the Moores initiated this lawsuit against CC/ BCBS in 1994. The suit, brought under section 502(a)(1)(B) of ERISA, see 29 U.S.C. § 1132(a)(1)(B), sought unpaid benefits allegedly due under the ERISA plan. During discovery, CC/BCBS learned that Alistaire had obtained a $1.3 million settlement from a personal injury suit that was filed on her behalf against the chauffeur and his insurers. CC/BCBS believed that the proceeds of the settlement were held in an irrevocable trust for the benefit of Alistaire M. Moore (Trust) with Judith Deitz as the named trustee. CC/BCBS then filed a counterclaim against the Moores, asserting their subrogation claim. CC/BCBS also filed a third party complaint against Alistaire M. Moore, the Trust and Judith Deitz Moore as trustee, seeking reimbursement for the benefits they had paid for Alistaire’s care. The Moores never responded to CC/BCBS’s counterclaim. The third party defendants admitted that the Trust had been created with and/or contained funds from the settlement. Pis.’ Answer to Third Party Compl. ¶ 3, reprinted at Supplemental Appendix (SA) 124. Following a' bench trial, the district court concluded that CC/BCBS had failed to pay the Moores benefits due under ERISA but that CC/BCBS also had a sub-rogation right to the settlement proceeds to the extent they had paid benefits to Alistaire or on her behalf. See Moore v. Capitalcare, Inc., 70 F.Supp.2d 9 (D.D.C.1999). Thereafter, the Moores moved for reconsideration of the subrogation ruling, which motion the court denied. See Moore v. CapitalCare, Inc., No. 94-1326 (D.D.C. June 1, 2000). The court also ordered an accounting to determine the amount each party was due. See id. Following the accounting, the Moores first claimed that the settlement proceeds had dissipated and therefore could not be subject to ah equitable lien. Pls.’ Reply" }, { "docid": "20475740", "title": "", "text": "MELLOY, Circuit Judge. Appellant Lawrence Chorosevic pursues this ERISA action on behalf of himself and others similarly situated, alleging that Appellees improperly calculated secondary health benefits owed to him for services rendered in 2004. The district court denied class certification and granted Appellees’ motion for summary judgment due to Chorosevic’s failure to exhaust available administrative remedies. Chorosevic argues that the district court erred by denying class certification, denying further class discovery, granting Appellees’ motion for leave to file answers out-of-time, and granting summary judgment. For the following reasons, we affirm. I. Background In 2004, Chorosevic received health insurance benefits through two ERISA-covered employee welfare benefit plans: a plan issued by Blue Cross and Blue Shield of Missouri (“BCBS”) and a plan issued by Appellee Metropolitan Life Insurance Company (“MetLife”) known as the Met-Life Choices Plan (“the Choices Plan”). Chorosevic was eligible for coverage under the Choices Plan through his wife, Diane (“Mrs.Chorosevic”), who was formerly employed by a wholly owned subsidiary of MetLife. The plan administrator of the Choices Plan was MetLife, and the claims administrator was Appellee United HealthCare Insurance Company (“United”). Accordingly, MetLife had full discretion in determining benefit eligibility, whereas United reviewed benefit decisions and had final decision-making authority on whether or not to pay a claim. Coordination of benefits, which occurs when a person has more than one source of reimbursement for health care expenses, is of central importance in this lawsuit. BCBS was Chorosevie’s primary insurer, meaning that BCBS was obligated to pay first when Chorosevic made a claim for medical benefits. The 2003 Summary Plan Description (“SPD”) for the Choices Plan included a provision for coordinating benefits, which the parties refer to as the “come out whole” method with a benefits reserve. According to Chorosevic, this method required the Choices Plan to credit the money that it saved by being the secondary insurer to a reserve, which could be used to reimburse a claimant for out-of-pocket expenses during the applicable calendar year. The SPD also set forth procedures for submission of claims and appeals, stating in part: “Participants wanting to dispute an adverse benefit" }, { "docid": "23449232", "title": "", "text": "the medical appropriateness of Dr. Hyman’s procedures. In April 1995, Mayeaux asked BCBS to reconsider its coverage decision, but BCBS refused. Counsel for the parties exchanged a series of letters in which May-eaux’s lawyer challenged BCBS’s refusal to cover the HDAT. At one point in that exchange, counsel for BCBS invited May-eaux to obtain a second medical opinion in support of the HDAT therapy. Mayeaux submitted an opinion from Dr. Quentin Deming that concurred with Dr. Hyman’s prescribed treatment, but BCBS continued to deny coverage. B. Court Prooeedings In 1995, the Plaintiffs filed suit in Louisiana state court seeking damages allegedly resulting from BCBS’s failure to pay for Mayeaux’s HDAT, as well as bad faith and fraud. BCBS removed the case to federal court invoking federal subject matter jurisdiction because Mayeaux was asserting, inter alia, a claim for benefits under an ERISA-governed plan. The district court allowed the Plaintiffs to amend their complaint to seek a declaratory judgment of Mayeaux’s right to receive future benefits under the Adler Plan. Protracted discovery ensued. In 1997, over BCBS’s objection, the district court permitted the Plaintiffs to supplement and amend their complaint a second time to add state law causes .of action for unfair trade practices, intentional interference with contract, and defamation. Discovery continued until April 1998, when the district court closed the case administratively until we ruled on two appeals that were pending. In February 2001, the Plaintiffs filed a motion to reopen this case, and shortly thereafter moved, for a third time, to supplement and amend their complaint. This time, the Plaintiffs proposed to dismiss Mrs. Hyman as a plaintiff and to add BCBS Medical Director, Dr. James Gengelbach, as a defendant. In the proposed amendment, the Plaintiffs alleged that Dr. Gengelbach (1) breached his duty of care under Louisiana state law, (2) conspired to retaliate against Dr. Hyman, (3) committed unethical practices, and (4) intentionally caused Mayeaux injury. The Plaintiffs further alleged that BCBS (1) was liable for Dr. Gengelbach’s actions under the theory of respondeat superior, (2) breached an implied warranty, and (3) breached its duty of good faith" }, { "docid": "23218207", "title": "", "text": "by possession is that “the debtor’s lack of possession coupled with actual possession by the creditor, the creditor’s agent or the bailee serves ‘to provide notice to prospective third party creditors that the debt- or no longer has unfettered use of [his] collateral.’ ” Ingersoll-Rand Financial Corp. v. Nunley, 671 F.2d 842, 844-845 (4th Cir.1982), citing Heinicke Instruments Co. v. Republic Corp., 543 F.2d 700, 702 (9th Cir.1976). See also In re Copeland, 531 F.2d 1195 (3d Cir.1976). As the Escrow Agent was fully informed of BCBS’ interest in the escrow account, and because the escrow agreement provided adequate notice to any subsequent creditors of OPM that OPM no longer had unfettered use of the funds in the escrow account, the Court is satisfied that delivery of possession to the Escrow Agent as custodian fully satisfied the perfection requirements of the U.C.C. In sum, BCBS fully perfected its security interest in the escrow account several years before OPM filed its bankruptcy petition through possession by the Escrow Agent as bailee. Hence, the Trustee is unable to recover under Code § 544 for “the trustee’s rights as a judgment lien creditor apply only where there is some interest to which a judgment lien could attach,” as of the date of the filing of the bankruptcy petition. In re Newcomb, 744 F.2d at 624 (8th Cir.1984). For the foregoing reasons, the Trustee’s motion for summary judgment on the complaint is denied, and BCBS’ cross-motion is granted. The Trustee’s complaint is dismissed. BCBS’ counterclaim is dismissed. See footnote 1 supra. It is so ordered. . The Trustee’s summary judgment motion includes a request for a declaration that BCBS’ alleged security interest in certain computer equipment is void. BCBS acknowledges that it failed to perfect its security interest, which is the subject of its counterclaim, until after OPM’s bankruptcy petition was filed. Accordingly the counterclaim shall be dismissed. . Code § 151104 provides in relevant part: (a) At any time after the commencement of the case but before confirmation of a plan, on request of a party in interest or the United States trustee," }, { "docid": "3497017", "title": "", "text": "RIPPLE, Circuit Judge. Ronald Kielar was convicted in the United States District Court for the Northern District of Illinois on charges arising out of a scheme to defraud two health insurance companies by submitting fraudulent claims for the prescription drug Procrit. He now appeals his conviction, alleging several procedural and evidentiary errors. For the reasons set forth in this opinion, we affirm the judgment of the district court. I BACKGROUND Ronald Kielar was a licensed pharmacist 'at the Cartagena Pharmacy in Chicago, Illinois. Many of Mr. Kielar’s patients came from the medical practice of Dr. Camilo Barros, whose office was located in the same building as the Cartagena Pharmacy. Starting in November 2004, Mr. Kielar began defrauding two health insurance companies, Blue Cross and Blue Shield of Illinois (“BCBS”) and United Food and Commercial Workers Union and Employers Midwest Health Benefit Fund (“UFCW”), by submitting fraudulent claims for the prescription drug Procrit. In particular, Mr. Kielar forged prescriptions for Procrit under Dr. Barros’s name and then submitted those prescriptions to BCBS and UFCW for payment. He knew at the time that Procrit had neither been prescribed, nor provided, to any of the individuals under whose policies he sought reimbursement. His scheme continued over roughly six years and resulted in losses to BCBS and UFCW of approximately $1,678,549. In August 2010, Mr. Kielar was indicted on five counts of health care fraud in violation of 18 U.S.C. § 1347. This indictment also contained a forfeiture allegation, pursuant to 18 U.S.C. § 982(a)(7), for any proceeds of Mr. Kielar’s fraudulent scheme. This allegation specifically identified three of Mr. Kielar’s properties as subject to forfeiture, including a property located at 12786 NW 75th Street, Parkland, Florida (the “Florida Property”). Later that month, the Government filed a notice of lis pendens for the Florida Property based on the indictment’s forfeiture allegation. Shortly thereafter, Mr. Kielar filed a motion requesting permission to sell the Florida Property, stating that he needed the proceeds of the sale in order to pay his attorneys’ legal fees. In its response, the Government stated that it did not object to" }, { "docid": "4375179", "title": "", "text": "MEMORANDUM OPINION AND ORDER BUCHMEYER, Chief Judge. Plaintiff Robert Taylor asserts claims against Defendant Blue Cross and Blue Shield of Texas, Inc. (“BCBS”) for discrimination in employment on the basis of disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C.A. §§ 12101-12213 (1995), and seeks injunc-tive relief, damages, and reinstatement. Now before this Court is Defendant’s Motion for Summary Judgment, filed on April 12, 1999. For the reasons stated below, Defendant’s motion is GRANTED. I. BACKGROUND FACTS On or about July 11, 1994, Mr. Taylor began working for BCBS as a sales instructor in the Corporate Training and Development Department, where his duties included defining training needs for various BCBS positions and departments, designing and organizing training courses, conducting sales and product-related training courses, surveying off-the-shelf training programs to determine whether they met the needs of various internal BCBS departments, and establishing and maintaining good client relationships. BCBS claims that, beginning in January 1996, Mr. Taylor exhibited continual performance problems, including failing to complete projects, misrepresenting the status of projects, and submitting work of poor quality. BCBS counseled Mr. Taylor about his poor work performance in September 1996, after which his work improved somewhat. BCBS then assigned Mr. Taylor to the InfoCenter PC Project, which required him to develop a training program for BCBS employees for use of the InfoCenter PC database. BCBS claims Mr. Taylor devoted insufficient attention to the project and was unresponsive to the client, in addition to misrepresenting his progress on the program. BCBS eventually removed Mr. Taylor from this assignment, allegedly based on his poor performance. Mr. Taylor claims that around the middle of 1995 he noticed that he was becoming increasingly tired, lethargic, and unable to maintain concentration. He alleges that while he continued to perform competently the essential aspects of his job, he had to work longer hours to complete the same tasks, suffered memory loss, and would fall asleep in meetings and at his desk. He also claims that he was not qualified for the InfoCenter assignment due to its high level of technicality. He maintains that he told" }, { "docid": "23449230", "title": "", "text": "WIENER, Circuit Judge: Cheryl Mayeaux, her husband Raymond Germain, and her treating physician and his wife, Dr. and Mrs. Edward S. Hyman (collectively the “Plaintiffs”) sued Louisiana Health Services and Indemnity Company, d/b/a Blue Cross and Blue Shield of Louisiana (“BCBS”). The Plaintiffs asserted various causes of action alleged to have arisen from BCBS’s denial of insurance coverage for the costs of Dr. Hyman’s treatment of Mayeaux’s illness with high doses of antibiotics. After several years of litigation, the Plaintiffs sought leave to amend and supplement their complaint for a third time in an apparent attempt to defeat federal subject matter jurisdiction. The district court denied the Plaintiffs’ motion for leave to amend and subsequently entered summary judgment against the Plaintiffs on all their claims. On appeal, the Plaintiffs contest the district court’s denial of their motion for leave to amend and, in the alternative, the district court’s grant of summary judgment in favor of BCBS. We affirm. I. FACTS AND PROCEEDINGS A. BACKGROUND In 1982, Mayeaux went to work for Coleman E. Adler & Sons (“Adler”). The following year, she sought medical treatment from Dr. Hyman who diagnosed Mayeaux as having a connective tissue illness that he calls “systemic coccal disease” (“SCD”). Dr. Hyman treated Mayeaux’s condition with a so-called “High Dose Antibiotic Treatment” (“HDAT”). In December 1993, BCBS began providing group health insurance coverage for Adler’s employees under a comprehensive medical benefit plan (the “Adler Plan”). BCBS denied coverage for Mayeaux’s HDAT, stating that it was excluded under the terms of the Adler Plan as experimental or investigational. The Adler Plan expressly excludes benefits for “[sjervices or supplies which are Investigational in nature” and defines “In-vestigational” as “the use of any treatment, procedure, facility, equipment, drug device or supply not accepted, as determined by [BCBS], as standard medical treatment of the condition being tested, or any such items requiring federal or other governmental agency approval not granted at the time services were rendered.” BCBS maintains that its decision to deny coverage for HDAT was purely a question of plan coverage and was not based on any determination regarding" }, { "docid": "23449240", "title": "", "text": "case with new causes of action and different parties. As stated by the Eighth Circuit, “when late tendered amendments involve new theories of recovery and impose additional discovery requirements, courts [of appeal] are less likely to find an abuse of discretion due to the prejudice involved.” In their Restated Complaint, the Plaintiffs were effectively reconstructing the case anew, after it had been pending in the district court for years and was nearing the close of extensive discovery. Indeed, the Plaintiffs were proposing to abandon Mayeux’s claim for medical benefits under the ERISA Plan^ — the claim that had been at the core of the Plaintiffs’ case from the outset. We conclude that permitting the amendment would have unduly prejudiced BCBS and Dr. Gengelbach, the new defendant whom the Plaintiffs proposed to add to the suit. The district court, therefore, did not abuse its discretion by denying the Plaintiffs leave to amend. C. Dismissal of Mayeaux’s Benefits Claim Mayeaux asserts two reasons why the trial court erred in granting summary judgment dismissing her benefits claim. First, Mayeaux insists that the letter from BCBS’s general counsel inviting a second opinion was a contractual offer which, when she accepted it by tendering Dr. Deming’s report, created a binding obligation on BCBS’s part to provide benefits. Second, Mayeaux challenges BCBS’s interpretation of the Adler Plan as precluding coverage for Dr. Hyman’s prescribed treatment as investigative. 1. Letter Contract Following BCBS’s denial of Mayeaux’s pre-authorization request, counsel for the parties exchanged a series of letters discussing the basis for BCBS’s decision. In one of these letters to Mayeaux’s lawyer, BCBS’s general counsel stated: Blue Cross and Blue Shield of Louisiana, as an insurer, is not obligated to pay for medical treatment which, in our sole discretion, is not medically appropriate. Further, we are not obligated to pay for the “trial and error” practice of medicine. It may be true that Dr. Hyman’s treatment is “good medicine”; however, the manufacturer of the medication states otherwise and the terms of our subscriber contract allow us to deny benefits for this reason. Finally, I would like to make-" }, { "docid": "7445063", "title": "", "text": "temporary restraining order but deferred ruling, on the preliminary injunction pending further briefing by the parties. Prior to any ruling, the Carillos filed a motion to dismiss asserting that the district court lacked jurisdiction- because B'CBS’s allegations “fail[ed] to state a claim for' equitable relief under 29 U.S.C.A. § 1132(a)(3).” BR1-24 at 8. BCBS responded with a motion for summary judgment. The court addressed all three motions in one order. Also adopting the reasoning of the Sixth and Ninth Circuits, the court concluded that BCBS’s claim “regardless of whether it is styled as a claim for a constructive trust, for equitable restitution, or for an equitable lien, simply seeks to enforce a provision of a plan document that would require Defendants to pay money.” Id. at 17-18. It further concluded that “[s]uch a claim is not equitable in nature, and is not ‘appropriate equitable relief for purposes of § 1132(a)(3).” Id. at 18. Alternatively, the court stated that, even undfer the alternative interpretation of Knudson adopted by a majority of circuits at the time, be cause BCBS had failed to “seek recovery of specified, identifiable funds, but instead [sought] recovery of funds that have been comingled into various checking accounts and spent, in part, to purchase a truck ... relief under § 1132(a)(3) [was] unavailable.” Id. at 18-19. Accordingly, the court granted the motion to dismiss. On the basis of the reasoning underlying the dismissal, the court also denied the motions for preliminary injunction and summary judgment. C. Appeals On appeal, Popowski, the Commerce Group, and BCBS now argue that the district courts, in relying upon the reasoning of the Sixth Circuit in Qualchoice v. Rowland, 367 F.3d 638 (6th Cir.2004) and the Ninth Circuit in Westaff (USA) Inc. v. Arce, 298 F.3d 1164 (9th Cir.2002), improperly interpreted Knudson. After the district court decisions and the appellate briefing in the cases now before us had occurred, the Supreme Court issued its opinion in Sereboff and addressed the circuit split as to the scope of equitable relief available under ERISA. We now review these cases in light of that decision. II." } ]

[ { "docid": "4494399", "title": "", "text": "PER CURIAM. The question is whether the order of March 9, 1938, superseded the order of February 25, 1938. The petition for the first order declared that wages were then due which must be paid “in order to prevent a complete disruption and discontinuance of the business of the debtor. A substantial portion of the merchandise belonging to the debtor is in an unfinished state. It is essential that the debtor be enabled to put these goods in a finished state in order to continue its business operations and it is therefore necessary for the debtor to continue the operation of its plant.” For this purpose $15,000 was thought necessary, and the judge authorized the issue of 'receiver’s certificates in that amount. It proved impossible to secure a buyer of such certificates; and on March 1st the debtor filed a second petition, declaring that it had been unable to borrow the money on the certificates already authorized, but that it had secured an offer to lend $5,000 upon a certificate, having as added security any equity in accounts already assigned to a factor. As this provided for only $5,000 of the $15,-000 needed, and was apparently all that the lender would advance, the petjtion then asked leave to borrow up to 75% of the face value of its current accounts receivable as they arose; and that “the remaining 25% equity of these accounts receivable” should be used, along with the equity of the already pledged accounts, “toward the reduction and repayment of the $5,-000 loan.” The petition concluded that “the debtor will not have to issue any further certificates. It will immediately set the plant and factory in motion and continue the employment of fifty people. This offer is the best and speediest method of releasing the debtor from its frozen status. The debtor has an inventory of over Forty-five thousand ($45,000) Dollars, much of it in an unfinished state and the funds thus made available will serve to liquidate this inventory at a substantial profit since the debtor is now going into its season.” The petitioner lent $5,000 and" } ]

[ { "docid": "22121841", "title": "", "text": "Chandler Act of 1938, § 77B(c)(3) was translated into § 166(2) in Chapter X and § 344 in Chapter XI. The sections differ in two respects. Whereas § 116(2) requires “such notice as the judge may prescribe,” § 344 omits this phrase. Although § 116(2) expressly states that Chapter X certificates may take priority over existing obligations “secured or unsecured”, § 344 omits the quoted phrase. Nothing in this opinion is to be taken as expressing a view on whether certificates issued under § 344 can be given a lien over other secured obligations, see 8 Collier, Bankruptcy ¶6.40[7.2] (1978). The instruments here at issue did not purport to do this. . This reads as follows: (a) If the trustee is authorized to operate the business of the debtor under section 721, 1108, or 1304 of this title, unless the court orders otherwise, the trustee may obtain unsecured credit and incur unsecured debt in the ordinary course of business allowable under section 503(b)(1) of this title as an administrative expense. (b) The court, after notice and a hearing, may authorize the trustee to obtain unsecured credit or to incur unsecured debt other than under subsection (a) of this section, allowable under section 503(b)(1) of this title as an adminis'trative expense. (c) If the trustee is unable to obtain unsecured credit allowable under section 503(b)(1) of this title as an administrative expense, the court, after notice and a hearing, may authorize the obtaining of credit or the incurring of debt— (1) with priority over any or all administrative expenses of the kind specified in section 503(b) or 507(b) of this title; (2) secured by a lien on property of the estate that is not otherwise subject to a lien; or (3) secured by a junior lien on property of the estate that is subject to a lien. (d) (1) The court, after notice and a hearing, may authorize the obtaining of credit or the incurring of debt secured by a senior or equal lien on property of the estate that is subject to a lien only if— (A) the trustee is" }, { "docid": "20558149", "title": "", "text": "* * trustee •x- * * Upon gUch notice as the judge may prescribe and upon cause shown, to issue certificates of indebtedness for cash, property, or other consideration approved by the judge, upon such terms and conditions and with such security and priority in payment over existing obligations, secured or unsecured, as in the particular case may be equitable.” Section 116(2) does not foreclose other means for Trustee to borrow money or incur indebtedness. Avorn Dress Co., Inc. (2 C.A., 1935) 79 F.2d 337. The power to authorize the continuance of the debtor’s business also implies the power to permit the borrowing of money or the incurring of indebtedness. Amick v. Hotz (8 C.A., 1939), 101 F.2d 311, cert. den., 307 U.S. 637, 59 S.Ct. 1033, 83 L.Ed. 1518; In Re Erie Lumber Company, (S.D.Ga., 1906) 150 F. 817. In the Erie case, supra, the Court at page 828 appropriately stated: “The power to continue business implies the power to make debts, and to provide for their payment, which must include the power to borrow money for urgent necessities and for direct operating expenditures. These considerations, we think, are conclusive as to the validity of the receivers’ certificates, nor has any other lienholder the right to complain of their priority.” In Collier on Bankruptcy (14th Ed.) Vol. 6A at page 47 the author states: “In the conduct of the debtor’s business, the trustee or debtor continued in possession has much the same status of an operator as the debtor had prior to reorganization. Thus taxes accruing on the property and by virtue of doing business must be paid, and the requirements of applicable state and federal laws must be complied with.” and cites many cases. An interesting case, discussing allegedly unauthorized loans to Trustee in bankruptcy is Wolf v. Nazareth Fairgrounds and Farmers’ Market, Inc. (2 C.A., 1960), 280 F.2d 891, wherein the Court at page 892 said: “[1,2] This court has held that under former Section 77B of the Bankruptcy Act an unauthorized loan may receive priority as an expense of administration in such unusual circumstances as would" }, { "docid": "11938748", "title": "", "text": "receivers to take possession of all the property and assets of the debtor and to maintain and operate them. They qualified as receivers and filed their inventories and appraisal of the debtor’s property on July 16, 1929. On October 10, 1929, the receivers requested authority from the court to borrow $30,000, upon receivers’ certificates, for the purpose of operating the property. This petition was consented to by Marshall, trustee, the authority to issue the certificates was thereupon granted, and they were issued and sold. On January 8, 1931, an employee, on behalf of himself and more than two hundred other employees, filed a petition to enforce liens for their wages against the receivers in the sum of $5,000. This was granted by the court on January 14, 1931. On February 25, 1931, the court entered an order for the filing of claims and directed that notice be given of the hearing to determine their priorities. On March 11, 1931, Mark E. Nebeker, as successor trustee to Buena V. Marshall, under the mortgage given by the debtor to secure the notes executed by it, including the notes now claimed to be held by appellant, filed his claim in the sum of $79,450. On August 17, 1931, the court classified the liens and claims on the notes secured by the mortgage as seventh in priority. On October 28, 1932, the receivers filed a motion to sell the real estate and the personal property, alleging that the assets of the debtor, including the trust estate, were not sufficient in value to pay either the liabilities of the receivers or those of the debtor, and asked for an order to sell all of the assets except cash, and bills, notes and accounts receivable. They further requested an order to sell the property free and clear of liens and encumbrances, except taxes, and that all liens be transferred to the fund arising from the proceeds of the sale in order of preference as the court should direct. They further asked that Nebeker, as trustee, be made a party defendant and that process issue to him." }, { "docid": "8942927", "title": "", "text": "Debtor’s inventory by the Trustees shall be kept in a separate account, and shall be applied solely to the expense of operating the Debtor’s business as hereinbefore specified. Subject to the further orders of the Court, which may hereafter prove necessary to carry out the intent hereof, the RFC’s lien shall be transferred to the said net proceeds. “3. The Trustees are authorized to employ Teviah Sachs to direct the operations of the Debtor’s business at the discretion and subject to the control of the Trustees, and to pay him compensation for such serv-. ices at the rate of $25,000 per year. “4. If the Trustees hereafter from time to time deem it necessary that they borrow funds and issue Trustees certificates here-for for the purpose of conducting the Debt- or’s business, they may apply to the Court for leave to do so upon five days prior notice in writing to RFC; and the iCourt reserves the right to authorize borrowing upon such certificates upon such terms and with such priority as the Court shall upon such hearing determine. “5. RFC is herewith directed as and when requested in writing so to do by the Trustees to deliver to them for the purposes and in accordance with this order any and all property of the Debtor which is now or may hereafter be in the possession of RFC. “6. All persons are herewith enjoined from interfering in any manner with the possession by the Trustees of the Debtor’s property or the carrying on by the Trustees of the business of the Debtor in accordance with this order.” On August 7, 1950, an application for a stay of this order pending appeal was denied by order of this court. The chief point raised by appellant is as to the power of the district court to order the turnover to its reorganization trustees of the debtor’s merchandise inventory held in the possession of RFC as pledgee under the factor’s lien agreement. In contrast with the provisions of law relating to straight bankruptcy, Chapter X, like its earlier counterpart § 77B, 48 Stat." }, { "docid": "20558148", "title": "", "text": "of the ■ relief provided by Chapter X; nevertheless, when the Court’s own appointed disinterested trustee has investigated the debtor’s business, his prospects for successful reorganization, and has recommended to the appointing judge that Chapter X would not be the proper vehicle under which to travel; and the district judge, based on these recommenda tions, concurs; then it is our view that an appellate tribunal should use extreme caution in reversing the District Court.” See also In Re Delta Food Processing Corporation, 313 F.Supp. 788 (U.S.D.C., N.D.Miss.). Under the circumstances existing at the time of the appointment of the Trustee and the issuance and authorization of the Certificate of Indebtedness, it was imperative that the Court either authorize the Trustee’s Certificate or declare the petitioner bankrupt and order liquidation and thus destroy the whole possibility of successful reorganization. Section 116 of Chapter X provides that: “Upon the approval of a petition, the judge may, in addition to the jurisdiction, powers, and duties in this chapter conferred and imposed upon him and the court— (2) authorize * * trustee •x- * * Upon gUch notice as the judge may prescribe and upon cause shown, to issue certificates of indebtedness for cash, property, or other consideration approved by the judge, upon such terms and conditions and with such security and priority in payment over existing obligations, secured or unsecured, as in the particular case may be equitable.” Section 116(2) does not foreclose other means for Trustee to borrow money or incur indebtedness. Avorn Dress Co., Inc. (2 C.A., 1935) 79 F.2d 337. The power to authorize the continuance of the debtor’s business also implies the power to permit the borrowing of money or the incurring of indebtedness. Amick v. Hotz (8 C.A., 1939), 101 F.2d 311, cert. den., 307 U.S. 637, 59 S.Ct. 1033, 83 L.Ed. 1518; In Re Erie Lumber Company, (S.D.Ga., 1906) 150 F. 817. In the Erie case, supra, the Court at page 828 appropriately stated: “The power to continue business implies the power to make debts, and to provide for their payment, which must include the power to" }, { "docid": "3191315", "title": "", "text": "Southwest Forest Industries, Inc., for $50,000. A certificate in that amount was issued on October 26, 1964, and there is now due and owing thereon the sum of $50,000. The funds advanced by both Producers and Southwest were used to keep the debtor’s business in operation. In each case either the certificate itself or the order authorizing its issuance expressly provided that subject to valid liens, if any, existing at the commencement of the Chapter XI proceedings, the certificate “shall have precedence and priority over all other liens, claims and demands against the property and estate of the aforesaid Debtor and shall have preference and priority over the expenses of administration”. Beginning on August 1, 1964, appellant, White Chemical Company, furnished “fungicides, insecticides and fertilizers” to the debtor at the request of the receiver in the amount of $28,451.-28. The receiver did not issue a certificate of indebtedness to White; nor was he authorized to do so by the referee. On December 29, 1964, the referee entered an order adjudging the debtor a bankrupt and directing bankruptcy proceedings pursuant to the provisions of the Bankruptcy Act. The funds held by the trustee consist of the proceeds of sale of assets of the bankrupt and the proceeds received by the trustee from the settlement of a civil action and a turnover order. None of these funds represent any income from crops grown by the receiver or the trustee. On September 27, 1967, the referee entered an order providing that the assets of the bankrupt’s estate be distributed in the following order of priority: (1) fees and expenses of trustee, his attorney and accountant, receiver and his attorney, and bankrupt’s attorney; (2) certificates of indebtedness issued to Producers and Southwest; and (3) the claim of White and another creditor as administrative expenses of the Chapter XI proceedings. Upon review the district court on January 30, 1968, entered its opinion and order holding that the referee properly authorized the issuance of the certificates of indebtedness pursuant to section 344, but that the order of priority of payment should be modified by limiting the" }, { "docid": "22121839", "title": "", "text": "amounts as before. . This represents $235,000 surplus held by MHCC from the purchase of accounts during the Chapter XI proceeding and $32,000 held by the trustee arising from the sale of inventory. . The power of an equity court which had appointed receivers of a railroad to issue such certificates to procure funds for the preservation and operation of the property was said to be beyond debate a century ago, see Wallace v. Loomis, 97 U.S. 146, 162-63, 24 L.Ed. 895 (1877), although the Court admonished that this was “a power to be exercised with great caution; and, if possible, with the consent or acquiescence of the parties interested in the fund.” This was true also with respect to receivers of other public service corporations. In other cases, the issuance of receivers’ certificates priming other claims was limited to the incurring of debt needed for the “preservation” as distinguished from continued operation of the property, at least in situations where the certificates were to take priority over existing liens. See 2 Clark, Law of Receivers, § 466 at 766-67 (3d ed. 1959); Payne, The General Administration of Equity Receiverships of Corporations, 31 Yale L.J. 685, 696-97 (1922); Tondel and Scott, Trustee Certificates in Reorganization Proceedings Under the Bankruptcy Act, 27 Bus.Law. 21, 31-32 (1971). When the Bankruptcy Act was amended to provide for reorganization of railroads in 1933, § 77(c)(3) gave the court broad authority to allow the trustee to issue such certificates. Section 77B(c)(3), relating to most other business corporations, enacted in 1934, provided that the court: (3) may, for cause shown, authorize the debtor or the trustee or trustees, if appointed, to issue certificates for cash, property, or other consideration approved by the judge for such lawful purposes, and upon such terms and conditions and with such security and such priority in payments over existing obligations, secured or unsecured, as may be lawful in the particular case; . This enlarged the power to authorize trustees of non-public service corporations and of debtors in possession to issue certificates. See Johnson, Bankruptcy Reorganization, §§ 421, 423 (1936). Under the" }, { "docid": "23004136", "title": "", "text": "class given equal priority by the Bankruptcy Act and fix an order of priority for the sub-classes according to its theory of equity. Moreover even if it did have such power it appears that the priorities granted by the court in the present case were not those which have been uniformly allowed by courts of equity in administering estates in receivership. In such cases it is held that the compensation of receivers and their counsel is to be given priority of payment over taxes, receiver’s certificates and other receivership creditors. Wire Wheel Corp. v. Fayette Bank & Trust Co., 7 Cir., 30 F.2d 318, certiorari denied Fayette Bank & Trust Co. v. Herod, 279 U.S. 873, 49 S.Ct. 514, 73 L.Ed. 1008. Sections 241, 242 and 243 of Chapter X of the Bankruptcy Act, 11 U.S.C.A. §§ 641, 642, 643, had their source in the former Sec. 77B (c) (9). They confer upon the district judge discretion to allow compensation and reimbursement for costs and expenses, not only to the reorganization trustees and their counsel, but also to the other claimants concerned in these appeals — the counsel for the debtor and for its stockholders and the creditors’ committee and their counsel. Furthermore Chapter X authorizes the allowances contemplated by Secs. 241, 242 and 243 to be made even though reorganization fails and liquidation takes place. In re Old Algiers, 2 Cir., 100 F.2d 374. Sec. 246 expressly so provides and the congressional intent is clear from the legislative history of the act as well. Since the Bankruptcy Act now permits creditors, stockholders and their counsel who assist in a reorganization effort to receive allowances even if a reorganization is not effected, the apparent injustice of permitting counsel for the stockholders and the creditors’ committee to share pro rata with the trustees and their counsel and the trustees’ creditors in a fund which is inadequate to pay them all in full is not ground for altering the scheme of priority fixed by the statute. We think, however, that in making such allowances in a proceeding where reorganization has failed, the" }, { "docid": "18777401", "title": "", "text": "OPINION EMIL F. GOLDHABER, Chief Judge: The issue at bench is whether we should grant a trustee’s motion for reconsideration of our order of October 8, 1982, which authorized, without notice or hearing, the incurring of a postpetition debt in exchange for the granting of a lien and priority status superior to adminstrative claims on this postpetition debt as well as on all prepetition debts of the lending creditor. For the reasons stated herein, we will grant the trustee’s motion and vacate our order. The facts of the case are as follows: Monach Circuit Industries, Inc. (“the debt- or”), filed a petition for reorganization under chapter 11 of the Bankruptcy Code (“the Code”). At that time the debtor was indebted to Continental Bank (“Continental”) in the amount of $501,032.08, which was secured by the debtor’s accounts receivable, inventory and proceeds, although the debtor also held other property valued in excess of $100,000.00 which was not the subject of any security interest. One week later, without the dissemination of any notice, the court approved a stipulation between the debtor and Continental which authorized the debtor to obtain postpetition financing from Continental in the amount of $40,000.00 pursuant to 11 U.S.C. § 364(c)(1) and (c)(2). In exchange, the approved stipulation accorded Continental’s postpetition and prepetition debts priority over administrative claims and also granted Continental a lien in all of the debtor’s collateral. In October of 1983, the creditors’ committee was appointed and two months later it filed a motion for reconsideration of our approval of the stipulation. In February of 1984 the case was converted to a chapter 7 proceeding and a trustee was appointed who undertook the prosecution of the motion at issue. In support of the motion for reconsideration of our approval of the stipulation, the trustee raises several points, the first of which is that the approval of the stipulation was given without notice to creditors. Under the Code, § 364(c), which is quoted infra at page 862, provides that the trustee or debtor in possession may obtain credit or incur debt “after notice and a hearing.” This phrase" }, { "docid": "17017665", "title": "", "text": "in personam. The purpose of Section 77B of the Bankruptcy Act, however, is to rearrange the rights of stockholders and claimants in respect to the property of the debtor. Moreover, section 77B(b) (10), 11 U.S.C.A. § 207(b) (10), defines “creditors” to include all holders of claims of whatever character against the debtor or its property, and “claims” to include debts, securities, other than stock, liens, or other interests of whatever character. The certificate holders in the case at bar plainly come within the definition of “creditors” as set forth by the Act itself. As a matter of law, to hold otherwise would be to prevent the reorganization of the debtor since a class of persons having an interest in the property of the debtor could not be bound by the result of the proceedings at bar. We do not admit of such a conclusion. See In re Westover, Inc., 2 Cir., 82 F.2d 177, and In re Park-83rd Street Corporation, 2 Cir., 93 F.2d 295, 297. Clause (1) of subsection (c) requires notice of the thirty day hearing be given by the debtor or trustees, if appointed, “to creditors and stockholders”. Clause (4) (a) states that the judge may direct the debtor- or the trustees, if appointed, to prepare lists “ * * * of all known bondholders and creditors of, or claimants against, the debtor or its property.” In view of the language used, the execution of the provisions just referred to, while not mandatory^ is none the less within the discretion of the District Judge. Clause (7) provides that the judge shall cause-reasonable notice of all hearings for the consideration of any proposed plan, or for the allowance of fees and expenses, to be given “creditors and stockholders” by publication -or otherwise. Clause (11) provides that any creditor or stockholder shall have the right to be heard on the question of the permanent appointment of any trustee or trustees and upon the proposed confirmation of any reorganization plan. The Mortgage Company cannot file a claim on behalf of all certificate holders. It lacks such authority, since it acts" }, { "docid": "11053896", "title": "", "text": "and privileges granted to Manufacturing and Business Corporations under the laws of this State for a term of perpetual years * * The Secretary of State, on May 10, 1932, issued to Sylvan Beach, Inc., a certificate of authority to commence business, stating that it had complied with the requirements of law. The certificate of incorporation granted by the State has not been revoked. Sylvan Beach, Inc., has functioned as a corporation since the certificate was issued, and all parties to this proceeding are shown to have dealt with it as such. The filing of the petition was first authorized at a meeting of the Board of Directors of the debtor on May 5,1938. Louis W. Peters, P. M. Perkinson, Ralph L. Peters, and O. Lew Gallant voted in favor. A. L. Petersen, A. H. Peters and William F. Faisst voted against it. At a directors’ meeting held on July 20, 1938, at which all directors were present except A. L. Petersen, it was unanimously voted that the action of the Board at its meeting on May 5, 1938, be ratified, and the officers of the company were instructed to file the petition. Section 77B of the Bankruptcy Act was, on September 22, 1938, superseded by Chapter X of the Bankruptcy Act, which, by § 276, sub. c(l), thereof, 11 U.S.C.A. § 676, sub. c(l), became applicable to this proceeding. See Bankers Securities Corp. v. Ritz Carlton Restaurant & Hotel Co., 3 Cir., 99 F.2d 51, 52, 53. The orders authorizing the temporary trustee to issue certificates of indebtedness stated “that said certificates should take priority i-n payment over existing obligations, debts, encumbrances and liens of the said Sylvan Beach, Incorporated, debt- or, * * On January 4, 1943, Koch and Dalton filed an amendment to their “Motion to Dismiss Proceedings, or for Order and Restitution to Movants of Assets and Business; and for Accountings,” to conform their pleading to the proof and to the judgment. Counsel who represent Sylvan Beach, Inc., on this appeal did not represent it prior to the entry of the judgment appealed from and did" }, { "docid": "8942926", "title": "", "text": "and net equity of the unsecured creditors and stockholders will be sharply diminished. “(c) The order entered herewith can be carried out without impairing the position or security of RFC. On the contrary that position and security will be substantially improved.” Following is the order of July 10, 1950, from which the present appeal was taken: “1. The Trustees are authorized from time to time to take possession of and operate all the property, assets and plant of the Debtor including that mortgaged to RFC 'and upon which it has a lien or liens, including without restricting the preceding generality, inventory, supplies, cash, securities, accounts receivable, plant, machinery and equipment; to conduct the business of the Debtor and to sell from time to- time portions of the inventory at such prices and upon such terms as the Trustees deem prudent; and for such purpose to purchase for cash or on credit and use necessary materials, supplies and other assets and to employ operatives and other necessary assistance. “2. The net proceeds of sales of the Debtor’s inventory by the Trustees shall be kept in a separate account, and shall be applied solely to the expense of operating the Debtor’s business as hereinbefore specified. Subject to the further orders of the Court, which may hereafter prove necessary to carry out the intent hereof, the RFC’s lien shall be transferred to the said net proceeds. “3. The Trustees are authorized to employ Teviah Sachs to direct the operations of the Debtor’s business at the discretion and subject to the control of the Trustees, and to pay him compensation for such serv-. ices at the rate of $25,000 per year. “4. If the Trustees hereafter from time to time deem it necessary that they borrow funds and issue Trustees certificates here-for for the purpose of conducting the Debt- or’s business, they may apply to the Court for leave to do so upon five days prior notice in writing to RFC; and the iCourt reserves the right to authorize borrowing upon such certificates upon such terms and with such priority as the Court shall" }, { "docid": "22121819", "title": "", "text": "favor of a lender relying on a facially void order” since MHCC would be fully paid for all post-petition advances. Accordingly he reversed the order of the bankruptcy judge and directed that the Trustee’s application be granted. On appeal MHCC argues that both the bankruptcy judge and the district judge were in error in holding that the Bankruptcy Act forbids “cross-collateralization” and that in any event the district judge erred by failing to recognize that the financing order had become final and non-appealable prior to the trustee’s application. II. We begin our discussion of the merits by agreeing with MHCC that the financing order did not run afoul of § 64a. Although, by virtue of § 302, § 64a applies in Chapter XI proceedings insofar as it is “not inconsistent with or in conflict with the provisions of” that Chapter, § 344 empowers the court to authorize a debtor in possession to issue: certificates of indebtedness for cash, property, or other consideration approved by the court, upon such terms and conditions and with such security and priority in payment over existing obligations as in the particular case may be equitable. It has long been the practice, both in equity receiverships and in reorganization proceedings under § 77, former § 77B, and Chapter X, for courts to authorize the issuance of certificates priming claims that would otherwise be entitled to prior payment. Moreover the point at issue here is the creation not of a super-priority but of a secured interest, see 3A Collier, supra, ¶64.02[2]. Compare White Chemical Co. v. Moradian, 417 F.2d 1015 (9 Cir. 1969). Indeed, it is common ground that, despite § 64a, the financing order is valid insofar as it created a new lien to secure the $100,000 of advances and any unpaid balance under the factoring agreement, even if enforcement of such a lien would deplete the funds from which priority claims could be paid. We likewise agree with MHCC that, contrary to the views of the bankruptcy judge and the district judge, § 70d sheds no light on the problem here at issue. The purpose" }, { "docid": "7951330", "title": "", "text": "GOURLEY, Chief Judge. This matter comes before the court on application for payment of fiaal allowances and reimbursement for various loans granted the debtor corporation. Divers loans were made to the Debtor by ‘Trustee and his counsel during the reorganization of the debtor corporation. The record fails- to disclose any authorization on the part of this court to make said loans as required by the Chandler Act, 11 U.S.C.A. § 516(2). The law is undisputed that a debtor cannot borrow money without authority. Indeed, one lending money to a corporate debtor in corporate reorganization proceeding acts at his peril in accepting receivers’ certificates for amounts loaned and must examine and satisfy himself of sufficiency of debtor’s or receiver’s authority to borrow money. In re Mannington Pottery Co., D.C., 104 F. Supp. 506; Standard Capital Corp. v. Saper, 2 Cir., 115 F.2d 383; Remington on Bankruptcy § 4512. To approve such unauthorized loans at this late date, occurring as they did, without following the delineated requisites of notice and court approval, would set a dangerous precedent for future reorganization proceedings, imperiling the vested interest of creditors and shareholders. The safeguards provided under Chapter X must be preserved and rigidly obeyed. Even if individuals must suffer the loss of good-intentioned advancements to a corporation wallowing in the mire of financial crisis, the court must not deviate from the strict, protective cloak of the law. In a somewhat different light appears the claim of Gerald S. Rogers who advanced certain sums of money pursuant to a plan of reorganization approved August 16, 1950 by the late Judge Owen M. Burns. Certain of the advances were made to compensate the Trustee and his counsel in amounts authorized by order of court when the plan was approved. Other amounts were advanced to keep the debtor’s plant in operation as' provided by the plan approved by order of this court. . Nevertheless, since no authorization of this court was secured for the consummation of these latter loans as required under Chapter X, I find no basis to treat them in the priority of expenses for administration." }, { "docid": "20558140", "title": "", "text": "MEMORANDUM OPINION BOHANON, Chief Judge. This cause came on for consideration by the Court upon objections of certain secured creditors to an Order authorizing issuance of a Trustee’s Certificate of Indebtedness in the sum of $150,000.-00. A summary of the facts as found by the Court should be set forth. On March 2, 1972, Public Leasing Corporation, debtor, filed a verified Petition for Reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., alleging it was unable to pay its debts as they matured and, among other things, alleging that it could be reorganized under Chapter X proceedings so as to satisfy all creditors, both secured and unsecured, and to preserve stockholders’ investments. On the same day representations were made to the Court that an emergency existed, which representations the Court found to be reliable, and the Court appointed Henry James, Trustee of the debtor estate, with broad powers to operate the business and manage the property of the debtor, and with the specific authority to pay all taxes and lawful charges incurred in the operation of the business and for the preservation of the assets of the debtor estate. The Order provided for the normal operating reports, investigative procedures as to claims, liabilities and the general condition of the debtor. In the Order appointing the Trustee, the Court provided, without notice: “In view of the immediate need of approximately $150,000.00 with which to purchase vehicle tags, insurance and other emergent items, * * * ” and authorized the Trustee to borrow from Robert P. Lammerts and Mid-Continent Life Insurance Company $75,000.00 from each upon Trustee’s Certificate of Indebtedness. On the date of the appointment of the Trustee and the authorization to issue the Trustee’s Certificate of Indebtedness, the Court was convinced upon the representations made that the numerous items of truck-trailer road rolling equipment of the debtor estate were generally in a poor state of repair, were dispersed throughout the southern half of the United States, and the whereabouts of many unknown. Unless insurance premiums on equipment operated by debtor were paid and license plates" }, { "docid": "18557283", "title": "", "text": "Act which provided: During the pendency of a proceeding for an arrangement, or after the confirmation of the arrangement where the court has retained jurisdiction, the court may upon cause shown authorize the receiver or trustee, or the debt- or in possession, to issue certificates of indebtedness for cash, property, or other consideration approved by the court, upon such terms and conditions and with such security and priority in payment over existing obligations as in the particular case may be equitable. 11 U.S.C. § 744 (1978) (repealed). Under section 344, it was beyond dispute that the statute granted to the bankruptcy court the power to authorize the trustee or debtor in possession to issue certificates of indebtedness. In re Scandia Builders Inc., 446 F.Supp. 115, 117 (N.D.Ga.1978); 8 Collier on Bankruptcy ¶ 344 at 964 (14th ed. 1978). Yet, there was considerable dispute whether these certificates could interfere or displace the rights and priority positions of secured creditors. The better view, however, was that the bankruptcy court did have the power to subordinate pre-existing liens to certificates of indebtedness issued under Section 344 in a Chapter XI case, but only in those instances where subordination was essential for preserving the encumbered property. Matter of Barser Const. Corp., 7 B.R. 499, 501 (Bkrtcy.D.P.R.1980); Scandia Builders, 446 F.Supp. at 117; 2 Collier on Bankruptcy ¶ 364.-04 at 9 (15th ed. 1981). . Section 1107(a) of the Code provides in part: (a) Subject to any limitations on a trustee under this chapter, and to such limitations or conditions as the court prescribes, a debtor in possession shall have all the rights, other than the right to compensation under section 330 of this title, and powers, and shall perform all the functions and duties, except the duties specified in sections 1106(a)(2), (3), and (4) of this title, of a trustee serving in a case under this chapter. 11 U.S.C. § 1107(a) (1980). . See Matter of Stanley Hotel, Inc., 15 B.R. 660 (Bkrtcy.D.Colo.1981) for an illustration of the proper use of section 364(d). In Stanley Hotel, the trustee of the Chapter 11 debtor sought" }, { "docid": "18557282", "title": "", "text": "on each project is approximately: (1) Sugarland West — $969,723.00 (2) Glenwood Manor — -$3,488,014.00 (3) Mary Catherine Estates — $633,039.00 (4) Indian Queen East — $549,829.00 . See Lyle and Davies, Virginia Mechanics’ Liens: A Precarious Priority, 21 Wash. & Lee L.Rev. 235 (1964), for a scholarly commentary on section 43 -21 of the Virginia Code Va.Code § 43-21 (1950). The authors suggest that under Virginia law, a properly perfected mechanic’s lien, to the extent of the improvements made to real estate, is well nigh invulnerable. Id. at 242. .Entries of Appearance were filed by Summit Utilities Company and the New Partnership which hold deeds of trust on the four (4) projects as well as Fort McHenry Lumber Co., John Benner Co., and various subcontractors and material suppliers which hold mechanic liens. . On numerous unfinished units, the most cost effective method would include, for example, pouring driveways, excavation, interior carpentry, and inserting doors and windows. Exhibit J — National Permanent’s Application. . Section 364(d) is derived from Section 344 of the old Bankruptcy Act which provided: During the pendency of a proceeding for an arrangement, or after the confirmation of the arrangement where the court has retained jurisdiction, the court may upon cause shown authorize the receiver or trustee, or the debt- or in possession, to issue certificates of indebtedness for cash, property, or other consideration approved by the court, upon such terms and conditions and with such security and priority in payment over existing obligations as in the particular case may be equitable. 11 U.S.C. § 744 (1978) (repealed). Under section 344, it was beyond dispute that the statute granted to the bankruptcy court the power to authorize the trustee or debtor in possession to issue certificates of indebtedness. In re Scandia Builders Inc., 446 F.Supp. 115, 117 (N.D.Ga.1978); 8 Collier on Bankruptcy ¶ 344 at 964 (14th ed. 1978). Yet, there was considerable dispute whether these certificates could interfere or displace the rights and priority positions of secured creditors. The better view, however, was that the bankruptcy court did have the power to subordinate pre-existing liens" }, { "docid": "22121840", "title": "", "text": "Receivers, § 466 at 766-67 (3d ed. 1959); Payne, The General Administration of Equity Receiverships of Corporations, 31 Yale L.J. 685, 696-97 (1922); Tondel and Scott, Trustee Certificates in Reorganization Proceedings Under the Bankruptcy Act, 27 Bus.Law. 21, 31-32 (1971). When the Bankruptcy Act was amended to provide for reorganization of railroads in 1933, § 77(c)(3) gave the court broad authority to allow the trustee to issue such certificates. Section 77B(c)(3), relating to most other business corporations, enacted in 1934, provided that the court: (3) may, for cause shown, authorize the debtor or the trustee or trustees, if appointed, to issue certificates for cash, property, or other consideration approved by the judge for such lawful purposes, and upon such terms and conditions and with such security and such priority in payments over existing obligations, secured or unsecured, as may be lawful in the particular case; . This enlarged the power to authorize trustees of non-public service corporations and of debtors in possession to issue certificates. See Johnson, Bankruptcy Reorganization, §§ 421, 423 (1936). Under the Chandler Act of 1938, § 77B(c)(3) was translated into § 166(2) in Chapter X and § 344 in Chapter XI. The sections differ in two respects. Whereas § 116(2) requires “such notice as the judge may prescribe,” § 344 omits this phrase. Although § 116(2) expressly states that Chapter X certificates may take priority over existing obligations “secured or unsecured”, § 344 omits the quoted phrase. Nothing in this opinion is to be taken as expressing a view on whether certificates issued under § 344 can be given a lien over other secured obligations, see 8 Collier, Bankruptcy ¶6.40[7.2] (1978). The instruments here at issue did not purport to do this. . This reads as follows: (a) If the trustee is authorized to operate the business of the debtor under section 721, 1108, or 1304 of this title, unless the court orders otherwise, the trustee may obtain unsecured credit and incur unsecured debt in the ordinary course of business allowable under section 503(b)(1) of this title as an administrative expense. (b) The court, after notice" }, { "docid": "11938747", "title": "", "text": "allegations that the court was requested to appoint a receiver. On the same day the complaint was filed, the Vermillion Coal Company filed its answer admitting the truth of the averments and consented that a receiver should be appointed. On the same date, Milward, Crawford, Spears, and Cochran, claiming to be creditors of the debtor, and Buena V. Marshall, claiming to be trustee under a certain mortgage executed by the debtor for five creditors holding notes for $70,-000, filed a motion representing that the claims held by them constituted 97 per cent of the\" total amount of the indebtedness owed by the debtor, and that it would be for the best interest of all parties that a receiver be appointed. On account of the special qualifications of the creditor Spears, they recommended that he be appointed as a receiver. On the same day the court granted the request of the bill and answers and appointed Wilbur N. Warner, of the Northern District of Indiana, and Archibald D. Spears, of the Southern District of Indiana, as receivers to take possession of all the property and assets of the debtor and to maintain and operate them. They qualified as receivers and filed their inventories and appraisal of the debtor’s property on July 16, 1929. On October 10, 1929, the receivers requested authority from the court to borrow $30,000, upon receivers’ certificates, for the purpose of operating the property. This petition was consented to by Marshall, trustee, the authority to issue the certificates was thereupon granted, and they were issued and sold. On January 8, 1931, an employee, on behalf of himself and more than two hundred other employees, filed a petition to enforce liens for their wages against the receivers in the sum of $5,000. This was granted by the court on January 14, 1931. On February 25, 1931, the court entered an order for the filing of claims and directed that notice be given of the hearing to determine their priorities. On March 11, 1931, Mark E. Nebeker, as successor trustee to Buena V. Marshall, under the mortgage given by the" }, { "docid": "2587454", "title": "", "text": "but for an indebtedness incurred some months before the court took charge of the property, for which the creditor had no lien under the law. There can be no presumption of consent by bondholders or trustee, because neither were parties to the cause in which it was issued. It cannot rest upon the equitable doctrine that there has been a diversion of income or funds to the use and benefit of the mortgage bondholders, for there has been no such diversion. All the authorities agree that the power to issue certificates of indebtedness and to make them a first lien is a power liable to great abuse, and to be sparingly exercised, and no case has been cited or found wherein a certificate issued by the receiver of a private corporation, in circumstances at all analogous to those appearing in this record, has been allowed priority over the mortgage bondholders. As to the claim of C. M. Bernard that he is an innocent purchaser without notice arjd for value, it is sufficient to say that although it be true that by the terms of the order the receiver was authorized and empowered to issue a negotiable receiver’s certificate, he cannot claim to hold as an innocent purchaser without notice, in the sense which that phrase imports, for certificates of this kind have not the quality of negotiable instruments under the law merchant. They are not commercial paper, and the purchaser or assignee can only recover upon them to the extent of the rights of the first payee. He is put upon inquiry as to all that was done in the cause wherein the certificates are issued and chargeable with notice. As said by the court in Union Trust Co. v. Ill. Midland Co., 117 U. S. 456, 6 Sup. Ct. 809, 29 L. Ed. 963: “The receiver and those lending money to him on certificates issued and orders made without prior notice to the parties interested take the risk of the final action of the court in regard to the loans. The court always retains control of the matter; its" } ]

[ { "docid": "3587675", "title": "", "text": "ORDER PRO, District Judge. This case arises out of allegedly discriminatory treatment of Plaintiff while she was employed at the Defendant Clark County Sanitation District (the “District”). During the relevant time period, Defendant E. James Gans was the Director of the District. Defendant Fred Turnier was the Manager of the Administrative Services Division within the District, and Defendant Michael Pierson headed the Administrative Support section within Administrative Services. Plaintiff worked in the Administrative Support section before relocating to the Purchasing section and eventually out of the District. Plaintiff alleges that she was subjected to poor treatment and harassment at the work place on the basis of her age and/or sex. The facts on which she bases this conclusion are as follows. Plaintiff began in the Administrative Services Division in 1978, where she received consistently good evaluations and appropriate promotions. She claims that her troubles started with the arrival of Ginger Woods, a substantially younger woman, in 1982. Woods had been in the District since- late 1979, but later was promoted to Division Secretary, working for Defendant Turnier. Plaintiff claims that Woods received preferential treatment including a lighter work load, longer lunch hours, and new office furniture because she had or was having an affair with Defendants Gans and Turnier. Plaintiff alleges that she complained about this preferential treatment, and that led to her being treated poorly in an effort to force her to leave. Plaintiff filed charges of age discrimination with the Equal Employment Opportunity Commission, and charges of age and sex discrimination with the Nevada Equal Rights Commission. Having exhausted her administrative remedies, Plaintiff filed a Complaint in state court on February 3, 1989. The case was removed to this Court by Defendants on March 2, 1989 (# 1). The Complaint basically alleges three causes of action. The first is for sex discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983. The second is for age discrimination under the Age Discrimination in Employment Act (“ADEA”). Finally, Plaintiff alleges intentional infliction of emotional distress against the three individual Defendants. On July" } ]

[ { "docid": "23323516", "title": "", "text": "HATCHETT, Chief Judge: Elaine Scarfo appeals the district court’s grant of summary judgment to the appel-lees on her claims of sexual harassment and employee discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et. seq (1997). Scarfo contends that the district court erred in concluding that it lacked subject matter jurisdiction over her Title VII claims. We affirm. I. FACTS Victor Ginsberg owned or partially owned the corporate appellees DBG 94, Inc.; DBG 95, Inc.; DBG 96, Inc.; and a number of corporations not named in this lawsuit, including Dr. Build, Inc. (Dr. Build); Dreamline Cabinet Systems, Inc. (Dreamline) and Galaxy Frame, Inc (Galaxy Frame). None of these corporations employed 15 or more employees for at least 20 weeks in 1992. Scarfo was a secretary and receptionist for DBG 95, Dr. Build and Dream Line. She alleged that throughout her employment, Ginsberg subjected her to unwelcome sexually offensive conduct. According to Scarfo, two or more of the above corporations combined constituted her employer for Title VII purposes. Moreover, Scarfo contends that Ginsberg and various part-time personnel were employees pursuant to Title VII jurisdiction. 42 U.S.C. § 2000e(b). II. PROCEDURAL HISTORY On October 26, 1993, Scarfo filed a complaint against Ginsberg, DBG 94, Inc.; DBG 95, Inc.; and DBG 96, Inc., (the appellees) alleging that Ginsberg: (1) discriminated against her in her employment on the basis of her sex; (2) subjected her to sexual harassment and created a hostile work environment; and (3) discharged her in retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. Scarfo also brought Florida state law claims for battery, intentional infliction of emotional distress and invasion of privacy. On January 23, 1995, the appellees moved for summary judgment, contending that the district court lacked subject matter jurisdiction over Searfo’s Title VII claims. Scarfo opposed the appellees’ motions, arguing that sufficient evidence existed in the record to create an issue of material fact as to whether Ginsberg had employed 15 or more employees for 20 weeks during 1992, the" }, { "docid": "13396856", "title": "", "text": "VII affords a claim for relief for sex-based discrimination to a woman who alleges that she was denied a promotion in favor of another woman who had a sexual relationship with their supervisor,” because that issue was not presented on appeal, id. at 883; see also Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 591-92 (9th Cir.1992)(Kleinfeld J., concurring) (pointing out that majority decision in that case does not address whether plaintiff would have stated a claim of sex discrimination if she “had provided cognizable evidence that a coworker received benefits $plaintiff$ did not because the coworker had an affair with a supervisor”). Here, plaintiffs do not claim that they were denied employment benefits for their refusal to submit to sexual advances. They have not shown that they were subjected to a hostile working environment; indeed, they did not work with either Mr. Burnett or Ms. Preston, rather, they assert that then-employer is liable under Title VII solely because a supervisor preselected his paramour for a probation even though she was less qualified than either Plaintiff. Taking plaintiff’s allegations as true, we conclude that they do not state a claim for relief under Title VII because they are based on a voluntary romantic affiliation, and not on any gender differences. Plaintiffs were in the same position as all men and all other women would have been-only Ms. Preston was considered for the promotion because of her special relationship with Mr. Burnett. See DeCintio, 807 F.2d at 308. Favoritism, unfair treatment and unwise business decisions do not violate Title VII unless based on a prohibited classification. Cf. EEOC v. Flasher Co., 986 F.2d 1312, 1319 (10th Cir.1992)(“Title VII does not make.. .irrational employment [decisions] illegal.”). Because we decline to extend Title VII to include consensual romantic involvements, we conclude that the promotion was not bases on a prohibited classification. The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED." }, { "docid": "16495152", "title": "", "text": "neither. Accordingly, Candelore’s age discrimination claim was properly dismissed on Clark County’s motion for summary judgment. Id.; Lowe v. City of Monrovia, 784 F.2d 1407 (9th Cir.1986) (summary disposition appropriate if plaintiff has not offered evidence of discriminatory motive); Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983) (plaintiff required to “tender a genuine issue of material fact as to pretext”). Finally, Candelore maintains that the defendants are liable for intentional infliction of emotional distress under Nevada law. To sustain this claim she must demonstrate: (1) extreme and outrageous conduct on the part of the defendants, (2) intent to cause emotional distress or reckless disregard as to that probability, (3) severe emotional distress, and (4) actual and proximate causation. Branda v. Sanford, 637 P.2d 1223, 1227 (Nev.1981). Liability for emotional distress will not extend to “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Restatement (Second) of Torts § 46 cmt. d (1965). The district court properly concluded that “the conduct upon which she relies is not so extreme and outrageous as to establish this claim.” See Schneider v. TRW, Inc., 938 F.2d 986, 992-93 (9th Cir.1991). AFFIRMED. KLEINFELD, Circuit Judge, concurring: I concur in the reasoning as well as the result. My purpose in concurring separately is to flag an undecided issue, so that readers do not infer a principle of law from our per curiam opinion upon which we have not decided. We have unanimously affirmed, because Candelore did not establish a factual predicate for the alleged discrimination against her. She “has never identified employment opportunities or benefits that were extended to less qualified female co-workers who responded to sexual overtures from work supervisors.” Suppose Candelore had provided cognizable evidence that a coworker received benefits Candelore did not because the coworker had an affair with a supervi sor. Would she then have a good sex discrimination claim? We have not had occasion, in this case, to decide that question one way or the other. The Second Circuit decided that, where disparate treatment was based on a romantic relationship rather than gender, it did not amount to" }, { "docid": "16495147", "title": "", "text": "PER CURIAM: Elaine Candelore appeals the district court’s summary judgment dismissal of her section 1983 action against Clark County Sanitation District, et al. See Candelore v. Clark County Sanitation Dist., 752 F.Supp. 956 (D.Nev.1990). Candelore alleged in her complaint that while employed at the Clark County Sanitation District she suffered age and sex discrimination. She also claimed that the sexual harassment she experienced supported a claim for intentional infliction of emotional distress under Nevada law. Candelore’s principal legal contentions on appeal involve her allegations that a coworker was having a romantic affair with one or more of Candelore’s supervisors. As Candelore recognizes, in order to prevail on her claim of sex discrimination in violation of the Constitution, she must be able to establish intentional discrimination pursuant to the standards developed under Title VII. 42 U.S.C. § 2000e et seq. (1981 & Supp.1992); See Peters v. Lieuallen, 746 F.2d 1390 (9th Cir.1984). The Title VII implementing regulation upon which Candelore relies provides: Other related practices: Where employment opportunities or benefits are granted because of an individual’s submission to the employer’s sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity. 29 C.F.R. 1604.11(g). Candelore, however, has never identified employment opportunities or benefits that were extended to less qualified female co-workers who responded to sexual overtures from work supervisors. Nor does she claim that she was denied any benefits because she spurned a supervisor’s sexual advances. Rather, Candelore alleges that one of her co-workers had an affair with one or two District supervisors and, as a result, this co-worker apparently received favorable treatment while Cande-lore grew increasingly frustrated in her position. Because Candelore failed to identify employment benefits or opportunities that she was entitled to but did not receive, she has not stated a prima facie case of discrimination under Title VII. Candelore’s claim that conduct engaged in by co-workers created a sexually charged environment, sufficiently oppressive to support a hostile work environment claim, also fails. Much of the evidence relied on by" }, { "docid": "22877893", "title": "", "text": "this claim, we do not mean to suggest that the fact Steiner quit her job may not weigh in to her proof (1) of damages for sexual harassment and (2) of the extent of her distress and other damages for the intentional infliction of emotional distress claim. Steiner began her career at Showboat as a promising employee, the Casino’s first female floorperson; it ended, sadly, in defeat. Steiner’s personal notes make it clear she was in considerable emotional turmoil at the time she resigned from her job with Showboat. Her treatment by Trenkle in all likelihood poisoned her relationship with Showboat management, and may have persuaded her that it was out to get her. The fact that she quit may be evidence of the emotional turmoil and instability caused by Trenkle’s conduct. IV. Intentional Infliction of Emotional Distress Steiner claims that Showboat is liable for Trenkle’s intentional infliction of emotional distress upon her. To succeed on this claim, she must show that Trenkle engaged in “extreme and outrageous” conduct, intending to cause emotional distress or recklessly unaware of that possibility, and in fact caused severe or extreme emotional distress. Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 591 (9th Cir.1992) (citing Branda v. Sanford, 97 Nev. 643, 637 P.2d 1223, 1227 (1981)); Nelson v. Las Vegas, 99 Nev. 548, 665 P.2d 1141, 1145 (1983); see Restatement of Torts (Second) § 46, at 73 (defendant’s conduct must “go beyond all possible bounds of decency” and be “atrocious, and utterly intolerable in a civilized community”). In addition, she must show that Showboat is liable for Trenkle’s acts under the principles of respondeat superior. Dias v. Sky Chefs, Inc., 919 F.2d 1370, 1375 (9th Cir.1990). We have previously noted, in this context, that an employer owes his or her employees a greater degree of respect because of the employment relationship. Dias, 919 F.2d at 1374 (discussing Oregon law); Restatement (Second) § 46, comment (e). Moreover, while simple insults do not constitute intentional infliction of emotional distress, insults which include sexual or racial harassment may rise to that level. Dias, 919 F.2d at" }, { "docid": "3302131", "title": "", "text": "at another lot in Belvidere. But she chose to file for unemployment instead. On October 8, 2012, Nischan lodged a sexual-harassment complaint with Stratosphere. Stratosphere subsequently turned the matter over to its legal counsel. On December 20, 2013, Nischan sued Stratosphere, Chrysler, and Sabbah in the Northern District of Illinois. Her complaint charges the defendants with sexual harassment, sex discrimination, and retaliation in violation of both Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. (“IHRA”). The complaint also asserts Illinois common-law claims for intentional infliction of emotional distress and battery. On September 23, 2014, the district court partially granted the defendants’ motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), disposing of all Title VII claims against Sabbah, the IHRA sexual-harassment and sex-discrimination claims against Sabbah, the battery claim against Stratosphere, and the intentional-infliction-of-emotional-distress claims against all of the defendants. The court subsequently reinstated the IHRA sexual-harassment claim against Sabbah. On January 11, 2016, the court granted the defendants’ motions for summary judgment under Federal Rule of Civil Procedure 56, dismissing the remaining Title VII and IHRA claims. The court then relinquished jurisdiction over the state-law battery claims against Chrysler and Sab-bah. Nischan timely appealed. II. ANALYSIS On appeal, Nischan challenges the district court’s grant of the defendants’ motions to dismiss and for summary judgment, disposing of her claims for sexual harassment, sex discrimination, retaliation, intentional infliction of emotional distress, and battery. We review these decisions de novo. Rockwell Automation, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 544 F.3d 752, 756 (7th Cir. 2008). Regarding the claims dismissed under Rule 12(b)(6), we accept all well-pled facts as true and construe all inferences in the nonmovant’s favor, granting the motion only when the complaint fails to allege facts sufficient to “state a claim to relief that is plausible on its face.” Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285, 289-90 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d" }, { "docid": "16495148", "title": "", "text": "submission to the employer’s sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity. 29 C.F.R. 1604.11(g). Candelore, however, has never identified employment opportunities or benefits that were extended to less qualified female co-workers who responded to sexual overtures from work supervisors. Nor does she claim that she was denied any benefits because she spurned a supervisor’s sexual advances. Rather, Candelore alleges that one of her co-workers had an affair with one or two District supervisors and, as a result, this co-worker apparently received favorable treatment while Cande-lore grew increasingly frustrated in her position. Because Candelore failed to identify employment benefits or opportunities that she was entitled to but did not receive, she has not stated a prima facie case of discrimination under Title VII. Candelore’s claim that conduct engaged in by co-workers created a sexually charged environment, sufficiently oppressive to support a hostile work environment claim, also fails. Much of the evidence relied on by Candelore in establishing the actual or rumored affairs involved conduct away from the workplace or outside business hours. A co-worker’s romantic involvement with a supervisor does not by itself create a hostile work environment. Drinkwater v. Union Carbide Corp., 904 F.2d 853, 862 (3rd Cir.1990) (hostile work environment not present where romantic relationship between co-worker and supervisor did not prevent plaintiff from being evaluated on grounds other than her sexuality). Further, the isolated incidents of sexual horseplay alleged by Candelore took place over a period of years and were not so egregious as to render Candelore’s work environment “hostile.” Jordan v. Clark, 847 F.2d 1368, 1374-75 (9th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 786, 102 L.Ed.2d 778 (1989) (abusive environment not created where men and women told “off-color” jokes at work). Because Cande-lore has failed to identify benefits or opportunities denied as a result of discrimination, and because the isolated incidents of inappropriate behavior did not create a hostile or abusive environment, Candelore has not demonstrated the existence of any triable issues of" }, { "docid": "2608828", "title": "", "text": "has held that the Act is retroactive to cases pending at the time of enactment. Sanders v. Culinary Workers Union Local No. 226, 783 F.Supp. 531 (D.Nev.1992). Therefore, even if Plaintiff is not entitled to equitable relief, she is entitled to the legal remedies of compensatory and punitive damages for any sexual harassment for which Defendant is found liable. Therefore, Defendant’s Motion for Summary Judgment (# 14) will be denied with respect to Defendant’s affirmative defense under the theory of falsification of employment application as to any legal remedies sought by Plaintiff. 2. PUBLIC POLICY EXCEPTION TO AT-WILL EMPLOYMENT Plaintiffs response to Defendant’s argument in opposition to the public policy against sexual harassment exception to at-will employment is based on Western States Mineral Corp. v. Jones, 107 Nev. 116, 807 P.2d 1392. Western States holds that tort remedies for violation of public policy as an exception to at-will employment are unavailable where the statutory law already provides the same remedies. The Civil Rights Act of 1991 now provides tort remedies for sexual harassment. Therefore, Defendant’s Motion for Summary Judgment (# 14) will be granted with respect to Plaintiffs claim under the theory of public policy exception to at-will employment. 3. EMOTIONAL DISTRESS Under Title VII and the reasonable victim standard, Defendant may be liable for conduct which it did not recognize as sexual harassment. Ellison v. Brady, 924 F.2d 872, 880 (9th Cir.1991). Under the common law theory of intentional infliction of emotional distress, however, Defendant is liable only where “the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Candelore v. Clark County Sanitation Dist., 752 F.Supp. 956 (D.Nev.1990) (citing Restatement (Second) of Torts § 41 and Comments thereto (1965)). This Court finds that the conduct on which Plaintiff relies is not so extreme and outrageous as to establish this claim. Therefore, Defendant’s Motion for Summary Judgment (# 14) will be granted with respect to Plaintiffs claim under the theory of intentional infliction of" }, { "docid": "16495151", "title": "", "text": "was suffering from job related stress, is fully supported by facts established in this record and not pretextual. Similarly, Clark County offered a legitimate, nondiscriminatory reason for reclassifying Candelore as a Schedule 13 rather than Schedule 15 employee. The reclassification was accomplished pursuant to the County Personnel Supervisor’s review of all district clerical positions. Candelore was not the only worker affected by the reclassification. Candelore’s contention that her transfer to the purchasing section was motivated by discriminatory animus also fails, as this transfer was accomplished pursuant to her own request to transfer. On a motion for summary judgment, if the defendant articulates a legitimate, nondiscriminatory reason for the challenged conduct, the burden shifts “back to the plaintiff to raise a genuine factual question as to whether the proffered reason is pre-textual.” Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir.1985), amended, 784 F.2d 1407 (9th Cir.1986). Candelore was required to either produce facts that evidenced Clark County’s discriminatory motive, or to show that Clark County’s explanation was not credible. Id. at 1438. She did neither. Accordingly, Candelore’s age discrimination claim was properly dismissed on Clark County’s motion for summary judgment. Id.; Lowe v. City of Monrovia, 784 F.2d 1407 (9th Cir.1986) (summary disposition appropriate if plaintiff has not offered evidence of discriminatory motive); Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983) (plaintiff required to “tender a genuine issue of material fact as to pretext”). Finally, Candelore maintains that the defendants are liable for intentional infliction of emotional distress under Nevada law. To sustain this claim she must demonstrate: (1) extreme and outrageous conduct on the part of the defendants, (2) intent to cause emotional distress or reckless disregard as to that probability, (3) severe emotional distress, and (4) actual and proximate causation. Branda v. Sanford, 637 P.2d 1223, 1227 (Nev.1981). Liability for emotional distress will not extend to “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Restatement (Second) of Torts § 46 cmt. d (1965). The district court properly concluded that “the conduct upon which she relies is not so extreme and outrageous as to" }, { "docid": "16495149", "title": "", "text": "Candelore in establishing the actual or rumored affairs involved conduct away from the workplace or outside business hours. A co-worker’s romantic involvement with a supervisor does not by itself create a hostile work environment. Drinkwater v. Union Carbide Corp., 904 F.2d 853, 862 (3rd Cir.1990) (hostile work environment not present where romantic relationship between co-worker and supervisor did not prevent plaintiff from being evaluated on grounds other than her sexuality). Further, the isolated incidents of sexual horseplay alleged by Candelore took place over a period of years and were not so egregious as to render Candelore’s work environment “hostile.” Jordan v. Clark, 847 F.2d 1368, 1374-75 (9th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 786, 102 L.Ed.2d 778 (1989) (abusive environment not created where men and women told “off-color” jokes at work). Because Cande-lore has failed to identify benefits or opportunities denied as a result of discrimination, and because the isolated incidents of inappropriate behavior did not create a hostile or abusive environment, Candelore has not demonstrated the existence of any triable issues of fact on her claim of sex discrimination. Candelore also contends that she was discriminated against on the basis of age in violation of the Age Discrimination in Employment Act. 29 U.S.C. §§ 623, 631. With respect to each of her claims, Clark County offered and supported “a legitimate, nondiscriminatory reason” for the challenged action. See Lindahl v. Air France, 930 F.2d 1434 (9th Cir.1991) (quoting McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). One of Candelore’s younger co-workers received more overtime because she was responsible for a particular project. There is no evidence that Candelore asked to assist with this project. Her coworker also performed overtime work while Candelore was on sick leave, so these hours cannot be attributed to a discriminatory purpose. Work responsibilities held by Candelore prior to her sick leave remained with a younger less qualified co-worker when Candelore returned to work full time. Clark County’s explanation for this arrangement, that Candelore was soon to be transferred to a new position and that she" }, { "docid": "21872282", "title": "", "text": "against the company, defendants. Vicki Anspach alleges she was constructively discharged from her employment with defendant Tomkins Industries and that her constructive discharge resulted from discrimination against her on the basis of sex, as well as sexual harassment and an offensive and hostile work environment in violation of Title VII, 42 U.S.C. § 2000e, et seq., and the Kansas Acts Against Discrimination (“KAAD”), K.S.A. 44-1001, et seq. She further claims she was retaliated against for opposing sexual harassment and for filing a discrimination charge with the Kansas Commission on Civil Rights (“KCCR”). Finally, Vicki alleges state law tort claims of intentional infliction of emotional distress and negligence. Plaintiff John Anspach alleges that he was retaliated against in violation of Title VII and the KAAD for openly opposing sexual harassment and for aiding his wife, Vicki Anspach, in her proceedings beforé the KCCR. He also alleges state law tort claims of intentional infliction of emotional distress and negligence. The company defendants (in this part of the opinion, simply “defendants”) seek summary judgment on plaintiffs’ state law claims of intentional infliction of emotional distress (also known as outrage) and negligence. Additionally, defendants assert that the state law claims are preempted by the Kansas Acts Against Discrimination and that neither plaintiff has a claim under the Civil Rights Act of 1991 because the alleged offending conduct occurred before the effective date of the Act. A. Intentional Infliction of Emotional Distress Defendants argue that the defendants’ conduct was not extreme and outrageous and that plaintiffs did not suffer the severe emo tional distress requisite to recovery on their claims of intentional infliction of emotional distress, also known as the tort of outrage. Although the court has not detailed the numerous incidents of harassment that Vicki and John suffered at the hands of their coworkers, for the purposes of this motion, the court accepts as true the plaintiffs’ factual allegations pertaining to the sexual harassment Vicki suffered and of the retaliation they both suffered. Viewing the evidence concerning these incidents in the light most favorable to the plaintiffs, the court must determine whether or not" }, { "docid": "3843869", "title": "", "text": "months. The Commission affirmed Swed-lund’s decision not to extend summer hours to plaintiff in 1996, because, according to defendants, additional hours for a secretary-bookkeeper were not justified by the workload. Plaintiff claims that she did not receive the additional hours because of her sexual harassment complaint and that in previous years, she received 50 hours per week, the same as other TCHD employees, because their additional work made more work for her. Moreover, she claims that when she approached Swed-lund to ask him why her overtime hours were not extended, he answered that one of the Commissioners was “giving him some shit” about giving her the extra hours. Plaintiff also claims that she did not receive interviews for other jobs for which she applied because she had been labeled a “troublemaker” for her sexual harassment complaints. Finally, plaintiff claims that she remains in fear of losing her job based on defendants’ conduct. [¶ 6] Plaintiff instituted this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (1982), and included pendent state law claims. In Count I of the complaint, plaintiff alleged that the acts and omissions of defendants constitute sexual harassment and sex discrimination in violation of Title VII. 42 U.S.C. § 2000e-2(a). Count II alleges that the acts and omissions of defendants. constitute sex discrimination and retaliation in violation of Title VII. 42 U.S.C. § 2000e-3. Plaintiff asserts in Counts III and IV that these same acts and omissions constitute sex discrimination and reprisal in violation of the South Dakota Human Rights Act, i.e., SDCL §§ 20-13-10 and 20-13-26 (Michie 1995). Plaintiff also alleges in Count V intentional infliction of emotional distress, negligent infliction of emotional distress in Count VI, and slander in Count VII, all based on defendants’ alleged acts and omissions. [¶ 7] Defendants filed a motion for summary judgment, Doc. 30. Defendants claim they are entitled to summary judgment as to Counts I and III because plaintiff has failed to show that she has been a victim of sexual harassment or subjected to a hostile work environment. Defendants" }, { "docid": "22556969", "title": "", "text": "be hospitalized for her injuries. See id. If the incident here were as severe as that in Al-Dabbagh, we would have to grapple with the difficult question whether a single incident can so permeate the workplace as to support a hostile work environment claim. Because the incident here was much less severe, we need not answer that question. Brooks did not allege that she sought or required hospitalization; indeed, she did not suffer any physical injuries at all. The brief eneoun-ter between Brooks and Selvaggio was highly offensive, but nothing like the ordeal suffered by the unfortunate young woman in Ah-Dabbagh, who was held captive from evening until early the next morning. Utilizing the Hams factors of frequency, severity and intensity of interference with working conditions, we cannot say that a reasonable woman in Brooks’s position would consider the terms and conditions of her employment altered by Sel-vaggio’s actions. Brooks was harassed on a single occasion for a matter of minutes in a way that did not impair her ability to do her job in the long-term, especially given that the city took prompt steps to remove Selvaggio from the workplace. Selvaggio’s conduct is akin to that reported in cases where plaintiff was held not to have alleged harassment severe enough to support a hostile work environment claim. See, e.g., Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 590 (9th Cir.1992) (per curiam) (“[I]solated incidents of sexual horseplay alleged by Candelore took place over a period of years and were not so egregious as to render Candelore’s work environment ‘hostile.’ ”) (quoting Jordan v. Clark, 847 F.2d 1368, 1374-75 (9th Cir.1988)); Del Valle Fontanez v. Aponte, 660 F.Supp. 145, 146-47, 149 (D.P.R.1987) (finding a single incident where defendant “pressed [plaintiff] against the door with his body” and plaintiff “felt defendant’s erect sexual organ against her body” twice in a five minute period not severe or pervasive enough to create a hostile working environment); see also Saxton v. American Tel. & Tele-graph Co., 10 F.3d 526, 528, 534 (7th Cir.1993) (finding insufficient harassment to constitute a hostile work environment where" }, { "docid": "13396855", "title": "", "text": "benefits in exchange for sexual favors from coworker), cert. denied, — U.S. -, 117 S.Ct. 1087, 137 L.Ed.2d 221 (1997); Miller v. Aluminum Co. of Am., 679 F. Supp. 495, 501 (W.D.Pa.)(“[P]referential treatment on the basis of a consensual romantic relationship between a supervisor and an employee is not gender-based discrimination.”), aff'd mem., 856 F.2d 184 (3d Cir.1988); DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 306-07 (2d Cir.1986)(“The proscribed differentiation under Title VII.. .must be a distinction based on a person’s sex, not on his or her sexual affiliations.”); cf. Ellert v. University of Tex., 52 F.3d 543, 546 (5th Cir.1995)(claim that plaintiff was discharged due to her knowledge of affair because employment between supervisor and another employee was not within Title VII’s ambit because employment decision did not rely on gender). Plaintiffs cite King v. Palmer, 778 F.2d 878 (D.C.Cir.1985), to support their sex discrimination claim. King is distinguishable. There, the court ruled on the type of evidence required to establish discrimination, see id. at 880-82, but did not examine “whether Title VII affords a claim for relief for sex-based discrimination to a woman who alleges that she was denied a promotion in favor of another woman who had a sexual relationship with their supervisor,” because that issue was not presented on appeal, id. at 883; see also Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 591-92 (9th Cir.1992)(Kleinfeld J., concurring) (pointing out that majority decision in that case does not address whether plaintiff would have stated a claim of sex discrimination if she “had provided cognizable evidence that a coworker received benefits $plaintiff$ did not because the coworker had an affair with a supervisor”). Here, plaintiffs do not claim that they were denied employment benefits for their refusal to submit to sexual advances. They have not shown that they were subjected to a hostile working environment; indeed, they did not work with either Mr. Burnett or Ms. Preston, rather, they assert that then-employer is liable under Title VII solely because a supervisor preselected his paramour for a probation even though she was less qualified than" }, { "docid": "22877894", "title": "", "text": "recklessly unaware of that possibility, and in fact caused severe or extreme emotional distress. Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 591 (9th Cir.1992) (citing Branda v. Sanford, 97 Nev. 643, 637 P.2d 1223, 1227 (1981)); Nelson v. Las Vegas, 99 Nev. 548, 665 P.2d 1141, 1145 (1983); see Restatement of Torts (Second) § 46, at 73 (defendant’s conduct must “go beyond all possible bounds of decency” and be “atrocious, and utterly intolerable in a civilized community”). In addition, she must show that Showboat is liable for Trenkle’s acts under the principles of respondeat superior. Dias v. Sky Chefs, Inc., 919 F.2d 1370, 1375 (9th Cir.1990). We have previously noted, in this context, that an employer owes his or her employees a greater degree of respect because of the employment relationship. Dias, 919 F.2d at 1374 (discussing Oregon law); Restatement (Second) § 46, comment (e). Moreover, while simple insults do not constitute intentional infliction of emotional distress, insults which include sexual or racial harassment may rise to that level. Dias, 919 F.2d at 1375; Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216, 217 (1970). Finally, where there is public humiliation it is much more likely that the tort action will lie. Sanchez-Corea v. Bank of America, 38 Cal.3d 892, 215 Cal.Rptr. 679, 691, 701 P.2d 826, 838 (1985). In Dias, we upheld a jury verdict awarding a female plaintiff $625,000 for defendant Sky Chefs intentional infliction of emotional distress. Defendant’s manager, who was plaintiffs supervisor, had engaged in a course of sexual harassment of plaintiff and other female employees; when she complained, he sabotaged her work and ultimately had her fired. 919 F.2d at 1373. In light of these precedents, we are unprepared to hold as a matter of law that public humiliation of an employee by her employer, accomplished through rude, crude sexually explicit remarks and actions, cannot constitute intentional infliction of emotional distress. In fact it appears that only the degree of distress is at issue. Since Steiner has raised triable issues of fact as to each of the aggravating" }, { "docid": "5972895", "title": "", "text": "(Black Dep. at 61-62). Plaintiff simply alleges that she witnessed Tankovich and Stanley’s conduct, which cannot be classified as “unwelcomed sexual harassment.” The conduct at issue, assuming it occurred as described and was witnessed by Plaintiff, was not frequent, severe, physically threatening, or humiliating. Although Tanko-vich’s unavailability may have interfered with Plaintiffs work performance, his conduct with Stanley did not. The alleged affair between Tankovich and Stanley did not create a hostile work environment. In fact, many courts have held that even a consensual, sexual relationship between a plaintiffs supervisor and a co-worker which results in preferential treatment for the “paramour” does not amount to a hostile work environment. See e.g., O’Patka v. Menasha Corp., 878 F.Supp. 1202, 1207 (E.D.Wis.1995); Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 590 (9th Cir.1992); Drinkwater v. Union Carbide Corp., 904 F.2d 853, 862 (3rd Cir.1990). See also Broderick v. Ruder, 685 F.Supp. 1269, 1277 (D.D.C.1988) (“Title VII is also violated when an employer affords preferential treatment to female employees who submit to sexual advances or other conduct of a sexual nature and such conduct is a matter of common knowledge”). These cases are distinguishable from Plaintiffs claim because her claim involves an affair between her supervisor and an outside person who was not an employee. Surely if an affair between a supervisor and a co-employee does not create a hostile work environment, then the alleged affair between Tan-kovich and Stanley, a parent volunteer, also does not. Even assuming, arguendo, that Plaintiff could establish the first two elements of the prima facie case, she cannot establish the third, that the alleged harassment was based on her sex. Plaintiff makes two arguments regarding this element. First, she argues that Tankovich’s conduct was “based upon sex” because “[t]he very nature of an affair involves sexual activity to some extent.” (Plaintiffs Memorandum Contra at 22). Second, Plaintiff seems to argue that Tankovich’s conduct was “based upon sex,” because he felt empowered to engage in the alleged conduct because of Plaintiffs sex, in that because Plaintiff was a woman, Tankovieh felt he could get away with his" }, { "docid": "16495150", "title": "", "text": "fact on her claim of sex discrimination. Candelore also contends that she was discriminated against on the basis of age in violation of the Age Discrimination in Employment Act. 29 U.S.C. §§ 623, 631. With respect to each of her claims, Clark County offered and supported “a legitimate, nondiscriminatory reason” for the challenged action. See Lindahl v. Air France, 930 F.2d 1434 (9th Cir.1991) (quoting McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). One of Candelore’s younger co-workers received more overtime because she was responsible for a particular project. There is no evidence that Candelore asked to assist with this project. Her coworker also performed overtime work while Candelore was on sick leave, so these hours cannot be attributed to a discriminatory purpose. Work responsibilities held by Candelore prior to her sick leave remained with a younger less qualified co-worker when Candelore returned to work full time. Clark County’s explanation for this arrangement, that Candelore was soon to be transferred to a new position and that she was suffering from job related stress, is fully supported by facts established in this record and not pretextual. Similarly, Clark County offered a legitimate, nondiscriminatory reason for reclassifying Candelore as a Schedule 13 rather than Schedule 15 employee. The reclassification was accomplished pursuant to the County Personnel Supervisor’s review of all district clerical positions. Candelore was not the only worker affected by the reclassification. Candelore’s contention that her transfer to the purchasing section was motivated by discriminatory animus also fails, as this transfer was accomplished pursuant to her own request to transfer. On a motion for summary judgment, if the defendant articulates a legitimate, nondiscriminatory reason for the challenged conduct, the burden shifts “back to the plaintiff to raise a genuine factual question as to whether the proffered reason is pre-textual.” Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir.1985), amended, 784 F.2d 1407 (9th Cir.1986). Candelore was required to either produce facts that evidenced Clark County’s discriminatory motive, or to show that Clark County’s explanation was not credible. Id. at 1438. She did" }, { "docid": "16495153", "title": "", "text": "establish this claim.” See Schneider v. TRW, Inc., 938 F.2d 986, 992-93 (9th Cir.1991). AFFIRMED. KLEINFELD, Circuit Judge, concurring: I concur in the reasoning as well as the result. My purpose in concurring separately is to flag an undecided issue, so that readers do not infer a principle of law from our per curiam opinion upon which we have not decided. We have unanimously affirmed, because Candelore did not establish a factual predicate for the alleged discrimination against her. She “has never identified employment opportunities or benefits that were extended to less qualified female co-workers who responded to sexual overtures from work supervisors.” Suppose Candelore had provided cognizable evidence that a coworker received benefits Candelore did not because the coworker had an affair with a supervi sor. Would she then have a good sex discrimination claim? We have not had occasion, in this case, to decide that question one way or the other. The Second Circuit decided that, where disparate treatment was based on a romantic relationship rather than gender, it did not amount to sex discrimination under Title VII. DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir.1986), cert. denied, 484 U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 50 (1987). The Second Circuit read “submission” in 29 C.F.R. § 1604.11(g) to involve “lack of consent” and an “element of coercion.” Id. at 307-08. Candelore’s claim, that Title VII applies to discrimination on account of another employee’s consensual romantic relationship, might represent a “significant expansion” of Title VII coverage. Cf. King v. Palmer, 778 F.2d 878, 883 (D.C.Cir.1986) (order denying en banc rehearing). Our decision should not be read as conflicting with the Second Circuit decision, or establishing any doctrine on whether discrimination on account of a coworker’s consensual romantic relationship with a supervisor violates Title VII, because we have not reached the legal issue." }, { "docid": "22556970", "title": "", "text": "the long-term, especially given that the city took prompt steps to remove Selvaggio from the workplace. Selvaggio’s conduct is akin to that reported in cases where plaintiff was held not to have alleged harassment severe enough to support a hostile work environment claim. See, e.g., Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 590 (9th Cir.1992) (per curiam) (“[I]solated incidents of sexual horseplay alleged by Candelore took place over a period of years and were not so egregious as to render Candelore’s work environment ‘hostile.’ ”) (quoting Jordan v. Clark, 847 F.2d 1368, 1374-75 (9th Cir.1988)); Del Valle Fontanez v. Aponte, 660 F.Supp. 145, 146-47, 149 (D.P.R.1987) (finding a single incident where defendant “pressed [plaintiff] against the door with his body” and plaintiff “felt defendant’s erect sexual organ against her body” twice in a five minute period not severe or pervasive enough to create a hostile working environment); see also Saxton v. American Tel. & Tele-graph Co., 10 F.3d 526, 528, 534 (7th Cir.1993) (finding insufficient harassment to constitute a hostile work environment where plaintiff was rubbed and kissed on one occasion, and resisted an attempted groping on another). jEllison is not to the contrary. Ellison alleged a sustained campaign of harassing conduct directed at her. See Ellison, 924 F.2d at 873-75 (recounting alleged harassment including love letters and date requests after plaintiff made it known that advances were unwelcome). Additionally, the course of conduct alleged by Ellison became more intense over time. Gray, the harasser, started by asking Ellison out a few times. He then sent her a brief love note followed by two letters. One of these comprised three single-spaced typed pages, and the other was sent after Gray had been told by his supervisors to cease his behavior. See id. Because Gray had continually ratcheted up the intensity of his advances, a reasonable woman could fear that this pattern would continue for as long as they were working in the same office. Nor did Ellison’s employer effectively address Gray’s behavior. After a brief transfer, Gray was again assigned to work with Ellison. Ellison’s working environment, characterized" }, { "docid": "19016809", "title": "", "text": "FITZWATER, District Judge: In this action alleging sex discrimination, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and a pendent state-law claim of intentional infliction of emotional distress, the magistrate judge ordered plaintiff to undergo a Fed.R.Civ.P. 35(a) mental examination. See Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 196 (N.D.Tex.1995). Because plaintiffs claim for intentional infliction of emotional distress has affirmatively placed her mental condition in controversy, and because her objections to the magistrate judge’s order present no basis for reversal, the order is affirmed. I The relevant background facts are set out in the opinion of the magistrate judge and need not be repeated at length. Plaintiff Marilyn K. Lahr, Esq. (“Lahr”) was employed as an attorney in the litigation section of the Dallas office of the law firm of defendant Fulbright & Jaworski, L.L.P. (“F & J”) until F & J terminated her employment. Lahr alleges that she was discharged on the basis of her female gender, and that throughout the course of her tenure with F & J, she was subjected to persistent sexual harassment. In particular, she contends that female employees were referred to in sexually derogatory terms, and that men treated women with vulgarity and hostility. Lahr maintains that this environment caused women to seek employment elsewhere, and otherwise adversely affected female employees at F & J. In addition, Lahr maintains that female attorneys were treated less favorably and that when she complained about this, she became the object of retaliation. Lahr alleges that F & J violated Title VII by sexually harassing and discriminating against her on the basis of sex, and by retaliating against her, and that it committed the Texas state-law tort of intentional infliction of emotional distress. In the course of discovery, F & J requested that Lahr submit to a mental examination in connection with her claim for intentional infliction of emotional distress, and her prayer for compensatory damages. After Lahr refused, F & J filed a motion to compel. F & J argued that because Lahr" } ]

[ { "docid": "22112804", "title": "", "text": "to the computer. D. Farley also contends that the evidence was insufficient to support his conviction on either count. We review de novo whether sufficient evidence supports a conviction, resolving all reasonable inferences in favor of the verdict. United States v. Brown, 415 F.3d 1257, 1270 (11th Cir.2005). In reviewing evidentiary sufficiency, “we must determine whether the evidence, construed in the light most favorable to the government, would permit the trier of fact to find the defendant guilty beyond a reasonable doubt.” Id. (quotation marks and citation omitted). We will not reverse unless no reasonable trier of fact could find guilt beyond a reasonable doubt. United States v. Schaltenbrand, 930 F.2d 1554, 1560 (11th Cir. 1991). “It is not our function to make credibility choices or to pass upon the weight of the evidence.” Brown, 415 F.3d at 1270 (quotation marks and citation omitted). “Instead, we must sustain the verdict where there is a reasonable basis in the record for it.” Id. (quotation marks and citation omitted). That is no less true when the district court, instead of a jury, acts as the trier of fact. Hearn v. McKay, 603 F.3d 897, 904 (11th Cir.2010) (“It is the exclusive province of the judge in non-jury trials to assess the credibility of witnesses and to assign weight to their testimony.” (alteration and quotation marks omitted)). To convict Farley under § 2422(b) for attempting to entice a minor for sexual activity, the government needed to prove (1) that Farley acted with the kind of culpability required for the crime he was charged with attempting, and (2) that he engaged in conduct constituting a substantial step toward its commission. Root, 296 F.3d at 1227-28. Farley did not contest that the government had proved the substantial step element, but contended only that it had not proven he acted with the necessary intent. We agree with the district court’s well-reasoned rejection of that contention. Farley’s communications with “Stephanie” are ample proof of his criminal intent to entice a person he believed to be a ten- or eleven-year-old girl into sexual activity. Farley asks us to" } ]

[ { "docid": "22862051", "title": "", "text": "did not say “bring us ours,” but instead shouted that he was leaving. Benavides testified that Hernandez was drunk the day of the drug deal and possibly did not know what was happening. Benavides testified that he had known Hernandez about a year and a half. Benavides testified that Hernandez was asleep in the car while Benavides drove. Benavides also testified that he did not hear Hernandez say anything. The jury convicted Hernandez of the offenses charged, and the jury found that Hernandez’s offenses involved two kilograms of cocaine hydrochloride. The district court denied Hernandez’s motion for judgment of acquittal or, in the alternative, a new trial. The district judge stated that, although he questioned the credibility of the witnesses for the prosecution and found the case against Hernandez to be weak, he could not supplant the findings of the jury. After calculating the appropriate sentencing range under the Guidelines, the district court-sentenced Hernandez to the lowest sentence in the range, and the district court stated that it would have imposed a lower sentence if it had the authority. II. STANDARDS OF REVIEW We review de novo the denial of a motion for judgment of acquittal. United States v. Bowman, 302 F.3d 1228, 1237 (11th Cir.2002). “When the motion raises a challenge to the sufficiency of the evidence, we review the sufficiency of the evidence de novo, drawing all reasonable inferences in the government’s favor.” Id. We review the denial of a motion for a new trial for abuse of discretion. Butcher v. United States, 368 F.3d 1290, 1297 (11th Cir.2004). III. DISCUSSION Hernandez appeals both his convictions and sentence. As to his convictions, Hernandez makes four arguments: (1) the evidence was insufficient to support the verdict; (2) the standard of review used to judge the sufficiency of the evidence is unconstitutional; (3) the district court employed the wrong standard when it denied his motion for a new trial; and (4) the judgment entered against him incorrectly reflects convictions for five kilograms instead of two. Finally, Hernandez argues that his sentence, which was imposed under a mandatory guidelines system, violated" }, { "docid": "21626842", "title": "", "text": "Parts and Pawn Mart affected interstate commerce, which is an essential element under the Hobbs Act. He also claimed that the government failed to prove that the item brandished during the robberies was actually a firearm. The district court denied the motion on both grounds. The jury found Woodruff guilty on all five counts. At sentencing, Woodruff objected to the application of a 25 year statutory-minimum sentence for Count 5 because the government failed to allege in the indictment that it was a “second or subsequent conviction.” Woodruff argued that because the second or . subsequent conviction under § 924(c)(1)(C)(i) dramatically increased the minimum sentence he could receive, Apprendi required the government to allege expressly in the indictment that the crime was a “second or subsequent” violation. The district court denied the motion finding that even if the words “second or subsequent” should have been included in the indictment, the, error was harmless beyond a reasonable doubt because the jury convicted Woodruff on two separate counts under § 924(c), necessarily making one of them “second or subsequent.” The district court sentenced Woodruff to 120 months’ imprisonment as to Count 1; 216 months as to Counts 2 and 4, to run concurrently with each other and Count 1; 84 months as to Count 8, to run consecutively to Counts 1, 2 and 3; and 300 months as to Count 5, to run consecutively to the other counts. Additionally, the district court sentenced Woodruff to a five-year term of supervised release and ordered him to pay $12,438 in restitution. This appeal followed. II. We review de novo the legal question of whether an indictment sufficiently alleges a statutorily proscribed offense. See United States v. Steele, 178 F.3d 1230, 1233 (11th Cir.1999). We also review a challenge to the sufficiency of the evidence de novo, resolving all reasonable inferences from the evidence in favor of the jury’s verdict. See United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir.1999). The evidence is sufficient where a reasonable trier of fact, choosing among reasonable interpretations of the evidence, could find guilt beyond a reasonable doubt." }, { "docid": "22336202", "title": "", "text": "contends that his sentence was unnecessarily harsh and punitive, considering the sentences of his co-conspirators and those who had participated in the conspiracy but were not charged. After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), “a sentence may be reviewed for procedural or substantive unreasonableness.” United States v. Ellisor, 522 F.3d 1255, 1273 (11th Cir.2008) (internal quotation marks omitted). We first review for procedural unreasonableness, to ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.) (internal quotation marks omitted), cert. denied, — U.S. -, 129 S.Ct. 2847, 174 L.Ed.2d 566 (2009). The procedural reasonableness of a sentence is reviewed for abuse of discretion, “but the degree of deference that is due varies with the type of procedural error alleged.” Ellisor, 522 F.3d at 1273 n. 25. For example, “[a] district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous.” Id. (internal quotation marks omitted). Therefore, “[w]e review de novo the district court’s interpretation of the Guidelines and its application of the Guidelines to the facts,” and we review the district court’s findings of fact for clear error. United States v. Campbell, 491 F.3d 1306, 1315 (11th Cir.2007) (internal quotation marks omitted). “A factual finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Ellisor, 522 F.3d at 1273 n. 25 (internal quotation marks omitted). Base offense level Barrington contends that his conviction under 18 U.S.C. § 1349 was unlawful and therefore the district court erred in relying on that conviction to set the" }, { "docid": "13204807", "title": "", "text": "why [his prior charges] were no actioned or nol-prossed.” Jackson acknowledged that he had a prior conviction in Florida for battery of a law enforcement officer, but he contested the facts provided in the presentence report. The government responded that Jackson’s argument challenging his classification as a career offender lacked merit because his prior conviction qualified as a crime of violence under the residual clause of the Sentencing Guidelines. The district court overruled Jenkins’s and Jackson’s objections. The district court sentenced Jenkins to 71 months of imprisonment and Jackson to consecutive sentences of 240 months for bank robbery and 120 months for brandishing a firearm. II. STANDARDS OF REVIEW Two standards of review govern' this appeal. We review de novo whether a conviction is supported by sufficient evidence, and we construe the evidence in the light most favorable to the government. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir.2009). Motions for a new trial based on the weight of the evidence are reviewed for abuse of discretion. United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir.1985). Because the denial of a motion for a new trial based on “pros-ecutorial misconduct involve[s] mixed questions of law and fact,” the motion is “subject to de novo review.” United States v. Noriega, 117 F.3d 1206, 1218 (11th Cir.1997). “We review de novo whether a defendant’s prior conviction qualifies as a ‘crime of violence’ under the Guidelines.” United States v. Cortes-Salazar, 682 F.3d 953, 954 (11th Cir.2012). “We review the reasonableness of a sentence for abuse of discretion.... ” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.2010). III. DISCUSSION Johnson, Jenkins, and Jackson raise five issues for our review. First, the three defendants contest the denial of their motions for a judgment of acquittal based on the insufficiency of the evidence. Second, Jenkins and Jackson argue that the district court evaluated their motions for new trial under an incorrect legal standard. Third, Jenkins argues that he was entitled to a new trial because the prosecutor im-permissibly vouched for Carrier’s credibility during rebuttal argument. Fourth, Jenkins challenges the procedural and" }, { "docid": "23313352", "title": "", "text": "enhancement. Glover had a total offense level of 20, a criminal history category of VI, and a sentencing guideline range of 70 to 87 months. The district court commented that “notwithstanding Blakely and Apprendi, it’s business as usual under the Federal Sentencing Guidelines,” and sentenced Glover to 78 months of imprisonment. II. STANDARD OF REVIEW This Court reviews the denial of a motion to suppress a confession under a mixed standard: findings of fact are reviewed for clear error and the application of law to the facts is reviewed de novo. United States v. Gil, 204 F.3d 1347, 1350 (11th Cir.2000). We review de novo the denial of a motion for post-verdict judgment of acquittal based on insufficiency of the evidence. United States v. Braithwaite, 709 F.2d 1450, 1457 (11th Cir.1983); see also United States v. Abbell, 271 F.3d 1286, 1291 n. 2 (11th Cir.2001). We view the evidence in the light most favorable to the prosecution and determine whether “a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.” Braithwaite, 709 F.2d at 1457. We review de novo questions of law arising under the United States Sentencing Guidelines. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005). III. DISCUSSION Glover raises three arguments on appeal. First, he argues that the district court erroneously admitted his incriminating statements because he had not validly waived his right against self-incrimination. Second, Glover argues that the district court erred in denying his motion for judgment of acquittal because the evidence was insufficient to support a guilty verdict. Third, Glover argues that the district court erroneously enhanced his sentence by classifying his previous conviction as a crime of violence and by viewing the Guidelines as mandatory. We address each argument in turn. A. Motion to Suppress Glover argues that the district court erroneously admitted his statement to the federal agents in violation of his Fifth Amendment right against self-incrimination. U.S. Const. Amend. V; see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Under Miranda," }, { "docid": "21626843", "title": "", "text": "or subsequent.” The district court sentenced Woodruff to 120 months’ imprisonment as to Count 1; 216 months as to Counts 2 and 4, to run concurrently with each other and Count 1; 84 months as to Count 8, to run consecutively to Counts 1, 2 and 3; and 300 months as to Count 5, to run consecutively to the other counts. Additionally, the district court sentenced Woodruff to a five-year term of supervised release and ordered him to pay $12,438 in restitution. This appeal followed. II. We review de novo the legal question of whether an indictment sufficiently alleges a statutorily proscribed offense. See United States v. Steele, 178 F.3d 1230, 1233 (11th Cir.1999). We also review a challenge to the sufficiency of the evidence de novo, resolving all reasonable inferences from the evidence in favor of the jury’s verdict. See United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir.1999). The evidence is sufficient where a reasonable trier of fact, choosing among reasonable interpretations of the evidence, could find guilt beyond a reasonable doubt. See United States v. Lluesma, 45 F.3d 408, 409-10 (11th Cir.1995). Because Woodruff raised his Apprendi argument at sentencing, we review his claim de novo, but will reverse only for harmful error. See United States v. Sanchez, 269 F.3d 1250, 1272 (11th Cir.2001)(en banc), cert. denied, — U.S. -, 122 S.Ct. 1327, 152 L.Ed.2d 234 (2002). A. Woodruff first argues that the indictment was fatally infirm because it failed to allege criminal intent, which is a material element under the Hobbs Act. By now, it is axiomatic that an indictment is sufficient if it “(1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense.” Steele, 178 F.3d at 1233-34 (quotations omitted); see also Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974) (“[A]n indictment is sufficient if it, first, contains the" }, { "docid": "1002135", "title": "", "text": "and Terry’s motions to suppress (a) evidence seized during a traffic stop, and (b) evidence seized from the Parkland residence. 2. Whether the government presented sufficient evidence to support Terry and Chris’s convictions for (a) conspiracy to defraud the United States, (b) conspiracy and use of unauthorized access devices to defraud, and (c) aggravated identity theft. 3. Whether the district court plainly erred in admitting testimony from a SWAT team officer executing a search warrant on the Parkland residence. 4. Whether the district court imposed reasonable sentences. III.STANDARDS OF REVIEW This court reviews a district court’s order denying a motion to suppress evidence under a mixed standard, reviewing the court’s findings of fact for clear error and the application of law to those facts de novo, construing the facts in the light most favorable to the prevailing party below. United States v. Ramirez, 476 F.3d 1231, 1235-36 (11th Cir, 2007). This court reviews “the sufficiency of evidence to support a conviction de novo, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences and credibility choices in favor of the jury’s verdict.” United States v. Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007). We review for abuse' of discretion a district court’s ruling on evidentiary matters. United States v. Edward, 485 F.3d 1324, 1343 (11th Cir. 2007). When reviewing sentencing guideline issues, this court “reviews purely legal questions de novo, a district court’s factual findings for clear error, and, in most cases, a district court’s application of the guidelines to the facts with due deference.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir, 2010) (internal quotation marks omitted). “For a finding to be clearly erroneous, this Court must be left with a definite and firm conviction that a mistake has been committed.” Id. (internal quotation marks omitted). This court, considering the totality of the facts and circumstances, reviews the final sentence imposed by the district court for reasonableness and reviews the reasonableness of the sentence for an abuse of discretion. United States v. Irey, 612 F.3d 1160, 1188-90 (11th Cir. 2010) (en" }, { "docid": "2069739", "title": "", "text": "to establish any constructive amendment of the indictment, much less a plainly erroneous one. D. Denial of Rule 29 Motions for a Judgment of Acquittal Jeff Vernon next appeals the district court’s denial of his Rule 29 motions for a judgment of acquittal. We review de novo the district court’s denial of a Rule 29 motion. United States v. Westry, 524 F.3d 1198, 1210 (11th Cir.2008). However, in doing so, we view “the evidence in the light most favorable to the government” and we draw “all reasonable inferences and credibility choices in favor of the jury’s verdict.” United States v. Tampas, 493 F.3d 1291, 1297-98 (11th Cir.2007) (internal quotation marks omitted). “If a reasonable jury could have found [Jeff Vernon] guilty beyond a reasonable doubt, then we cannot overturn the jury’s determination.” United States v. McGuire, 706 F.3d 1333, 1336 (11th Cir.2013) (internal quotation marks omitted). Jeff Vernon contends that the government presented insufficient evidence to convict him under subsection (b)(2)(A) of the Anti-Kickback statute, which criminalizes the offering or paying of kickbacks “to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program.” 42 U.S.C. § 1320a-7b(b)(2)(A). Like Chris Vernon, Jeff Vernon argues that the government presented no evidence of “referrals,” as only physicians can make “referrals,” and HMS/Lori Brill and Waters made only “recommendations.” We reject that argument for the reasons we gave in our discussion of Chris Vernon’s appeal. HMS/Lori Brill and Waters were able to and indeed did make referrals within the meaning of the statute. Jeff Vernon also contends that he did not make payments for referrals of individuals, and that, at most, the evidence showed that Lori Brill and Waters recommended the purchasing or ordering of factor medication from Medfusion. However, there was ample evidence that Lori Brill and Waters referred individuals to Medfusion. Medfusion did not pay Lori Brill or Waters to recommend isolated purchases of a product; rather, it paid Lori Brill and Waters to refer" }, { "docid": "22087790", "title": "", "text": "sentencing range between 41 and 51 months of imprisonment. Spoerke objected to the report and guidelines range and argued that he was entitled to a reduction for acceptance of responsibility because he went to trial only to preserve the constitutional challenge and had not contested the factual basis of his indictment. The district court determined that Spoerke was not entitled to the reduction because he had contested a factual element of the case. Spoerke then argued for a sentence “somewhere between the pretrial diversion [Kramer] got and 50 months under the guidelines” to avoid unwarranted sentence disparities. The district court determined that a sentence below the guidelines was not warranted because a preponderance of the evidence established that Spoerke had been involved in burglaries in the past. II. STANDARDS OF REVIEW Several standards of review govern this appeal. When a motion to dismiss challenges the constitutionality of a statute, we review de novo the interpretation of the statute by the district court. United States v. Evans, 476 F.3d 1176, 1178 (11th Cir.2007); United States v. Trainor, 376 F.3d 1325, 1330 (11th Cir. 2004). “The inquiry into the sufficiency of the government’s evidence produced at trial is a question of law subject to de novo review.” United States v. Keller, 916 F.2d 628, 632 (11th Cir.1990). “The court ... views the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government’s favor.” Id. We will affirm the denial of a motion to acquit if “a reasonable factfinder could conclude that the evidence establishes the defendant’s guilt beyond a reasonable doubt.” Id. We review the denial of a motion to suppress as a mixed question of law and fact; “rulings of. law [are] reviewed de novo and findings of fact [are] reviewed for clear error, in the light most favorable to [the government,] the prevailing party in district court.” United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir.2007). Evidentiary rulings by the district court are reviewed for an abuse of discretion, United States v. Malol, 476 F.3d 1283, 1291 (11th Cir.2007)," }, { "docid": "22291822", "title": "", "text": "thus increased to 10. With an offense level of 10 and a criminal history category of I, Doe’s Guidelines range was 6 to 12 months for Count 1. As for Counts 2 and 3, 18 U.S.C. § 1028A(a)(l) required that a mandatory two-year term of imprisonment be imposed, to run consecutive to any other term of imprisonment. Pursuant to U.S.S.G. § 2B1.6 cmt. n.l(B), however, these two two-year terms could, in the court’s discretion, run concurrently with each other. Doe objected to the PSPs recommendation that the obstruction-of-justice enhancement be imposed. After considering Doe’s objection and the government’s response, the district court found that the enhancement was proper. The court explained, “We rely on our Probation Office to give us accurate information, and they are an arm of the court; and so when they are deceived, we are deceived.” The district court sentenced Doe to a six month term of imprisonment on Count 1, and terms of twenty-four months’ imprisonment on Counts 2 and 3, to run concurrently to each other but consecutive to the sentence in Count 1. After the district court pronounced sentence, Doe again objected to the obstruction-of-justice enhancement. II. A. We review de novo whether there is sufficient evidence to support a jury’s verdict in a criminal trial. United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir.2009). In so doing, we “view the evidence in the light most favorable to the government and resolve all reasonable inferences and credibility evaluations in favor of the jury’s verdict.” United States v. Robertson, 493 F.3d 1322, 1329 (11th Cir.2007) (internal quotation marks omitted). “Evidence is sufficient to support a conviction if a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.” Maxwell, 579 F.3d at 1299 (internal quotation marks omitted). As long as a reasonable trier of fact could so find, “[t]he evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.” Robertson, 493 F.3d at 1329 (internal quotation marks omitted); see also United States v. Thompson, 473 F.3d 1137, 1142 (11th" }, { "docid": "22055332", "title": "", "text": "United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996) (\"A district court by definition abuses its discretion when it makes an error of law.”); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1253 (11th Cir.2005) (“We review the district court’s ... application of the law de novo, premised on the understanding that application of an improper legal standard is never within a district court's discretion.”) (internal quotation marks and citation omitted). \"A district court may also abuse its discretion by applying the law in an unreasonable or incorrect manner.” Klay, 376 F.3d at 1096. We therefore “review de novo the district court's interpretation of the Guidelines and its application of the Guidelines to the facts,” and ”[w]e review for clear error the district court’s findings of fact regarding whether a defendant should receive an enhanced sentence under the ... Guidelines.” Campbell, 491 F.3d at 1315 (internal quotation marks and citations omitted). \"A factual finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir.2007) (internal quotation marks and citation omitted). At a minimum, there must be substantial evidence to support a factual finding. Id. “The district court's factual findings for purposes of sentencing may be based on, among other things, evidence heard during trial, undisputed statements in the PSI, or evidence presented during the sentencing hearing.” United States v. Polar, 369 F.3d 1248, 1255 (11th Cir.2004). . Ellisor does not claim that his sentence was substantively unreasonable. . Ellisor also contended that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Blakely v. Wash ington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), his sentence violated the Ex Post Facto Clause, the Due Process Clause of the Fifth Amendment, and his Sixth Amendment right to trial by jury because the district court found and considered sentencing facts not found by a jury" }, { "docid": "2069738", "title": "", "text": "the referral.” He apparently argues that the jury instruction language was broader than the indictment’s language, and that the jury instructions encompassed even payments that did not ultimately result in referrals. Again, Jeff Vernon’s argument is meritless. As mentioned above, the six substantive counts expressly referenced the “Manner and Means” sections of the conspiracy counts, which alleged that Jeff and Chris Vernon “increased their profits by inducing” Lori Brill or Leroy Waters to refer patients to Medfusion. The indictment also referenced subsection (b) of the Anti-Kickback statute, 42 U.S.C. § 1320a-7b(b), which includes the phrase “to induce.” See 42 U.S.C. § 1320a-7b(b). The district court did not, therefore, err by including the statutory language in the instruction. See United States v. Seher, 562 F.3d 1344, 1357 (11th Cir.2009) (“[T]he Fifth Amendment is satisfied if the indictment makes a specific statutory reference to an essential element of the offense and contains some other indication from which we can infer that the grand jury found that element to be present.”). For all these reasons, Jeff Vernon failed to establish any constructive amendment of the indictment, much less a plainly erroneous one. D. Denial of Rule 29 Motions for a Judgment of Acquittal Jeff Vernon next appeals the district court’s denial of his Rule 29 motions for a judgment of acquittal. We review de novo the district court’s denial of a Rule 29 motion. United States v. Westry, 524 F.3d 1198, 1210 (11th Cir.2008). However, in doing so, we view “the evidence in the light most favorable to the government” and we draw “all reasonable inferences and credibility choices in favor of the jury’s verdict.” United States v. Tampas, 493 F.3d 1291, 1297-98 (11th Cir.2007) (internal quotation marks omitted). “If a reasonable jury could have found [Jeff Vernon] guilty beyond a reasonable doubt, then we cannot overturn the jury’s determination.” United States v. McGuire, 706 F.3d 1333, 1336 (11th Cir.2013) (internal quotation marks omitted). Jeff Vernon contends that the government presented insufficient evidence to convict him under subsection (b)(2)(A) of the Anti-Kickback statute, which criminalizes the offering or paying of kickbacks “to refer" }, { "docid": "20810284", "title": "", "text": "(1) the evidence was insufficient to support any of his convictions for production, possession, and distribution of child pornography; (2) the district court abused its discretion in denying his post-verdict motion for a new trial; and (3) the district court erred in applying a two-level enhancement under § 2G2.1(b)(3) of the sentencing guidelines for distribution of child pornography. We review de novo the sufficiency of the evidence to support a conviction, “viewing all the evidence in the light most favorable to the government and drawing all reasonable inferences and credibility choices in favor of the jury’s verdict.” United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir.2010) (quotation marks omitted). A jury’s verdict “cannot be overturned if any reasonable construction of the evidence would have allowed the jury to find the defendant guilty beyond a reasonable doubt.” United States v. Rodriguez, 732 F.3d 1299, 1303 (11th Cir.2013). We review a district court’s denial of a motion for a new trial only for abuse of discretion. United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006). “When employing an abuse-of-discretion standard, we must affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” United States v. Whatley, 719 F.3d 1206, 1219 (11th Cir. 2013) (quotation marks and brackets omitted). We review de novo a district court’s interpretation and application of the sentencing guidelines, and review its factual findings only for clear error. Rodriguez, 732 F.3d at 1305. IV. Grzybowicz challenges on sufficiency of the evidence grounds his convictions for producing and possessing child pornography as charged in Counts 1 and 3 of the indictment. To establish his guilt under those two counts, the government was required to prove that: (1) he knowingly produced and possessed (2) images of a minor (3) depicting that minor engaging in “sexually explicit conduct” (4) using a facility of interstate or foreign commerce. See 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(B). Grzybowicz contends that the evidence was insufficient to establish that the images found on his cellphone involved an actual minor (element 2) or" }, { "docid": "19347596", "title": "", "text": "Claim Davis argues that the 162-year sentence, which obviously amounts to a life sentence, constitutes cruel and unusual punishment. In support of this proposition, he stresses that he was eighteen and nineteen years old at the time of the commission of the offenses, and suffered from bipolar disorder and a severe learning disability, and had no prior convictions. While these are no doubt significant factors, we can grant no relief on this issue. Allegations of cruel and unusual punishment are legal questions subject to our de novo review. United States v. Haile, 685 F.3d 1211, 1222 (11th Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 1723, 185 L.Ed.2d 785 (2013). Davis argues that the mandatory consecutive nature of his sentence violated the Eighth Amendment’s prohibition on cruel and unusual punishment. He views his sentence, totaling nearly 162 years, as grossly disproportionate when considering his youth, intellectual disability, and emotional maturity, and as especially harsh for a non-homicide offense. For its part, the Government relies on the rarity of successful proportionality cases for adult offenders outside the capital context. As applied to noncapital offenses, the Eighth Amendment encompasses at most only a narrow proportionality principle. United States v. Brant, 62 F.3d 367, 368 (11th Cir.1995) (citing Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)). We accord substantial deference to Congress: “In general, a sentence within the limits imposed by statute is neither excessive nor cruel and unusual under the Eighth Amendment.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir.2006) (quotation omitted). We must first make the determination whether a total sentence is grossly disproportionate to the offenses committed. Id. In United States v. Farley, 607 F.3d 1294, 1339 (11th Cir.2010), we held that the mandatory nature of a non-capital penalty is irrelevant for proportionality purposes, and observed that we have never found a term of imprisonment to violate the Eighth Amendment. Id. at 1343. Nor do we do so now. Here, Davis’s total sentence is unmistakably severe. However, a gross proportionality analysis necessarily compares the severity of a sentence to the crimes of con" }, { "docid": "19347595", "title": "", "text": "we now view as a plain error. Additionally, we also find that this error “affected the fairness, integrity, or public reputation of the judicial proceedings.” McKinley, 732 F.3d at 1297. The evidence that Davis personally brandished the firearm he possessed during the robbery of the Little Caesar’s restaurant is not “overwhelming and essentially uncontroverted.” Id. To the contrary, only one witness testified that a gun was pointed at her, and there is no evidence that Davis was the one who did it. Further, the jury had an opportunity to convict Davis of either (1) possessing a firearm in furtherance of the robbery or (2) using or carrying a firearm in furtherance of the robbery. Yet it only found that Davis possessed a firearm. We therefore will be constrained to vacate the extension of the sentence. In doing so, we observe on behalf of both the judge who entered the sentence and the counsel who did not raise the error that the trial in this case preceded the Supreme Court decision in Alleyne. V. Eighth Amendment Claim Davis argues that the 162-year sentence, which obviously amounts to a life sentence, constitutes cruel and unusual punishment. In support of this proposition, he stresses that he was eighteen and nineteen years old at the time of the commission of the offenses, and suffered from bipolar disorder and a severe learning disability, and had no prior convictions. While these are no doubt significant factors, we can grant no relief on this issue. Allegations of cruel and unusual punishment are legal questions subject to our de novo review. United States v. Haile, 685 F.3d 1211, 1222 (11th Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 1723, 185 L.Ed.2d 785 (2013). Davis argues that the mandatory consecutive nature of his sentence violated the Eighth Amendment’s prohibition on cruel and unusual punishment. He views his sentence, totaling nearly 162 years, as grossly disproportionate when considering his youth, intellectual disability, and emotional maturity, and as especially harsh for a non-homicide offense. For its part, the Government relies on the rarity of successful proportionality cases for adult offenders outside" }, { "docid": "8736839", "title": "", "text": "article was cumulative to the evidence produced at trial. The district court also concluded that the consideration of Exhibit 4 was harmless because “there was no intent by any party or juror to taint the jury’s deliberations,” the jurors did not discover the exhibit until after they had decided on their verdicts for counts two through eight, the jurors remained deadlocked even after they found the exhibit before the Allen charge, and the United States presented a strong case on the sole bank robbery charge under deliberation by the jury when the jurors found the exhibit. ■ The district court sentenced Whatley to 300 months of imprisonment on counts one, three, and five, to be served concurrently, and 18 months of imprisonment on count seven, to run consecutive to the other counts. Whatley objected to the application of a four-level sentencing enhancement for abduction. See United States Sentencing Guidelines Manual § 2B3.1(b)(4)(A) (2010). The district court heard argument and overruled the objection because Whatley had herded the employees around different areas of the bank. The district court also ordered Whatley to pay $942,729.50 in restitution to the four banks. II. STANDARDS OF REVIEW . Several standards of review govern this appeal. “Constitutional questions are reviewed de novo.” United States v. Doug las, 489 F.3d 1117, 1126 (11th Cir.2007). “We review the district court’s admission of prior crimes or bad acts ... for abuse of discretion.” United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir.2008) (internal quotation marks and alteration omitted). “We review the denial of a motion for a new trial based on the submission of extrinsic material to the jury for abuse of discretion.” United States v. Dortch, 696 F.3d 1104, 1110 (11th Cir.2012). Finally, “[w]e review de novo the application of the sentencing guidelines and findings of fact for clear error.” United States v. Louis, 559 F.3d 1220, 1224 (11th Cir.2009). III. DISCUSSION We divide our discussion in four parts. First, we explain why the admission of the in-court identifications did not' violate Whatley’s right to due process. Second, we explain why the district court did not" }, { "docid": "3931871", "title": "", "text": "the maximum sentence provided by the U.S. Sentencing Guidelines, since the guidelines were legally binding on the dates Ward allegedly committed his offenses and went to trial. We are unpersuaded. The applicable standards of review are by now well-settled. We review de novo a district court’s denial of a motion for judgment of acquittal, United States v. Grigsby, 111 F.3d 806, 833 (11th Cir.1997), and we examine the evidence in a light most favorable to the jury verdict, United States v. Jemigan, 341 F.3d 1273, 1278 (11th Cir.2003). Likewise, we review questions of constitutional law de novo. United States v. Brown, 364 F.3d 1266, 1268 (11th Cir.2004). However, since Ward admittedly did not raise in the district court his constitutional challenge to the application of the United States Sentencing Guidelines, our review is only for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). Under plain error review, “[a]n appellate court may not correct an error the defendant failed to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation marks and citations omitted). A. Co-schemer Liability for Mail Fraud Ward challenges the sufficiency of the evidence to support all three substantive counts, contending that he cannot be held vicariously liable under a conspiracy theory because of the mistrial as to Count One. He argues that without the conspiracy the evidence supports neither his convictions for causing the particular mailings of Counts Two and Four nor the wire transfer charged in Count Three. A factual finding will be sufficient to sustain a conviction if, “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)" }, { "docid": "22570460", "title": "", "text": "MARCUS, Circuit Judge: Daniel L. Lyons appeals his conviction for possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g), and the 235-month sentence the district court imposed based on his status as an “armed career criminal,” pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4(b). On appeal, Lyons argues that: (1) the district court erred by denying his pretrial motion to suppress four bullets found on his person during a search incident to his arrest for disorderly conduct, a violation of Fla. Stat. § 877.03; (2) the district court erred by granting the government’s motion in limine to exclude evidence of Lyons’s state-court acquittal on the § 877.03 charges; and (3) the imposition of a 235-month “armed career criminal” sentence constitutes cruel and unusual punishment, in violation of the Eighth Amendment. We apply a mixed standard of review to the denial of a defendant’s motion to suppress, reviewing the district court’s findings of fact for clear error and its application of law to those facts de novo. United States v. Desir, 257 F.3d 1233, 1235-36 (11th Cir.2001). We review a district court’s evidentiary rulings for abuse of discretion. See United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir.2004) (en banc), petition for cert. filed, No. 04-8324 (Jan. 13, 2005). As for Lyons’s constitutional challenge to his sentence, our review is de novo. See United States v. Reynolds, 215 F.3d 1210, 1212 (11th Cir.2000). Upon thorough review of the record, as well as careful consideration of the parties’ briefs and oral argument, we find no reversible error and affirm. I. The relevant facts are straightforward. On November 13, 2002, Lyons was indicted in one count for possession of ammunition (four Remington .22 caliber bullets), after having been convicted of three or more violent felony or serious drug offenses, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The indictment identified eight prior felony convictions: grand theft, attempted robbery, aggravated assault, two robberies, sale or delivery of cocaine, possession of cocaine, and sale of a substance in lieu of a controlled substance. Lyons moved to" }, { "docid": "23221040", "title": "", "text": "MARCUS, Circuit Judge: Miguel Perez appeals his conviction, entered after a two-day bench trial, for multiple counts of bringing aliens to the United States knowing, or in reckless disregard of the fact that the aliens had not received prior authorization to enter the country, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). The charges arose from law enforcement’s discovery of six Cuban nationals on a boat from which Perez, along with a co-defendant, the owner of the boat, had disembarked at Matheson Hammock in southwestern Miami-Dade County. On appeal, Perez argues the district court erred by: (1) denying his motion to suppress evidence seized from the boat; (2) admitting evidence of his 2002 conviction for smuggling aliens, pursuant to Fed.R.Evid. 404(b); and (3) denying his motion for judgment of acquittal, pursuant to Fed. R.Crim.P. 29, in which he argued the government failed to show that he knowingly committed the offense or acted with reckless disregard of his passengers’ status as illegal aliens. After thorough review, we affirm. I. “A district court’s ruling on a motion to suppress presents a mixed question of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999). We accept the district court’s factual findings as true unless the findings are shown to be clearly erroneous. Id. at 1240-41. All facts are construed in the light most favorable to the prevailing party below. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir.2000). The district court’s application of the law to the facts is reviewed de novo. Id. We review for abuse of discretion a district court’s ruling on the admissibility of evidence of uncharged conduct under Rule 404(b). See United States v. Miller, 959 F.2d 1535, 1538 (11th Cir.1992) (en banc). We review de novo the district court’s denial of a motion for judgment of acquittal, viewing the facts and drawing all inferences in the light most favorable to the government. See United States v. Descent, 292 F.3d 703, 706 (11th Cir.2002), cert. denied, 537 U.S. 1132, 123 S.Ct. 913, 154 L.Ed.2d 820 (2003). To affirm the denial of a motion for" }, { "docid": "8736840", "title": "", "text": "district court also ordered Whatley to pay $942,729.50 in restitution to the four banks. II. STANDARDS OF REVIEW . Several standards of review govern this appeal. “Constitutional questions are reviewed de novo.” United States v. Doug las, 489 F.3d 1117, 1126 (11th Cir.2007). “We review the district court’s admission of prior crimes or bad acts ... for abuse of discretion.” United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir.2008) (internal quotation marks and alteration omitted). “We review the denial of a motion for a new trial based on the submission of extrinsic material to the jury for abuse of discretion.” United States v. Dortch, 696 F.3d 1104, 1110 (11th Cir.2012). Finally, “[w]e review de novo the application of the sentencing guidelines and findings of fact for clear error.” United States v. Louis, 559 F.3d 1220, 1224 (11th Cir.2009). III. DISCUSSION We divide our discussion in four parts. First, we explain why the admission of the in-court identifications did not' violate Whatley’s right to due process. Second, we explain why the district court did not abuse its discretion when it admitted the evidence of the attempted bank robbery in 2007. Third, we explain why the district court did not abuse its discretion when it concluded that the jurors’ consideration of extrinsic evidence was harmless. Fourth, we explain why the district court erred when it applied the sentencing enhancement for abduction to Whatley. A. The Admission of the In-Court Identifications Did Not Violate Whatley’s Right to Due Process. Whatley argues that the admission of the in-court identifications of him by the bank employees violated his right to due process of law. He relies on our precedents in Code v. Montgomery, 725 F.2d 1316 (11th Cir.1984), and Douglas for the proposition that the admission of in-court identifications may violate a defendant’s right to due process if the identification procedure is “so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.” Douglas, 489 F.3d at 1126 (internal quotation marks omitted); Code, 725 F.2d at 1319 (internal quotation marks omitted). In those decisions, we first determined whether the in-court identification" } ]

[ { "docid": "22389303", "title": "", "text": "to stand trial, not whether he was competent to waive his right to counsel. 509 U. S., at 394-395. This Court, reversing the Court of Appeals, “rejected] the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard.” Id., at 398. The decision to plead guilty, we said, “is no more complicated than the sum total of decisions that a [represented] defendant may be called upon to make during the course of a trial.” Ibid. Hence “there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.” Id., at 399. And even assuming that self-representation might pose special trial-related difficulties, “the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Ibid, (emphasis in original). For this reason, we concluded, “the defendant’s ‘technical legal knowledge’ is ‘not relevant’ to the determination.” Id., at 400 (quoting Faretta, supra, at 836). We concede that Godinez bears certain similarities with the present case. Both involve mental competence and self-representation. Both involve a defendant who wants to represent himself. Both involve a mental condition that falls in a gray area between Dusky’s minimal constitutional requirement that measures a defendant’s ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose. We nonetheless conclude that Godinez does not answer the question before us now. In part that is because the Court of Appeals’ higher standard at issue in Godinez differs in a critical way from the higher standard at issue here. In Godinez, the higher standard sought to measure the defendant’s ability to proceed on his own to enter a guilty plea; here the higher standard seeks to measure the defendant’s ability to conduct trial proceedings. To put the matter more specifically, the Godinez defendant sought only to change his pleas to guilty, he did" } ]

[ { "docid": "11895469", "title": "", "text": "not the competence to represent himself. Id. at 399, 113 S.Ct. 2680 (internal quotation marks and citations omitted). The Court wrapped up its opinion by reaffirming that the trial court must always satisfy itself that the waiver is knowing and voluntary. Only in this sense, it said, was more needed to waive the right to counsel than is necessary for a finding of basic competence to stand trial. See Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966). In Iowa v. Tovar, 541 U.S. 77, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), the Court reiterated that the critical point that must be established is that the waiver of the right to counsel is the product of a “knowing, intelligent act done with sufficient awareness of the relevant circumstances.” Id. at 80,124 S.Ct. 1379 (internal quotation marks and alterations omitted). But Tovar holds that the Sixth Amendment does not compel a trial court specifically to warn a defendant about the substantive consequences of his waiver, including the risk that a potential defense might be overlooked and the loss of the chance to obtain an attorney’s independent opinion on the wisdom of a guilty plea. Id. at 81,124 S.Ct. 1379. The state courts thought that Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), introduced the possibility of taking into account the defendant’s legal knowledge, but that is not what the case holds. In Edwards, the Court faced the problem of “a criminal defendant whom a state court found mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself.” Id. at 167, 128 S.Ct. 2379. In that situation, it held, the state may insist that the defendant proceed to trial with counsel. Mental competence, or mental functioning (as Faretta called it), the Court said, presents a distinct problem for self-representation. It acknowledged that Godinez had rejected the idea of a two-tier standard for competence in the circumstances presented there. “To put the matter more specifically, the Godinez defendant sought only to change his pleas to guilty," }, { "docid": "642082", "title": "", "text": "the Wisconsin Supreme Court’s decision raised the standard for competence so high that its decision was again simply contrary to Faretta. There is a narrow class of cases in which a defendant may not be competent to represent himself at trial, but there is no evidence of such circumstances here. The United States Supreme Court has explained that a “right of self-representation at trial will not affirm the dignity of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel.” Indiana v. Edwards, 554 U.S. 164, 176, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) (internal quotation marks omitted). A state may therefore deny defendants the right to represent themselves where they suffer from “severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Id. at 178, 128 S.Ct. 2379. There is no indication that Imani suffered from mental illness or mental impairment. The record shows that Imani was articulate and able to carry on reasoned conversations with the judge. One cannot stretch Edwards to hold that it was permissible to find Imani incompetent to represent himself. It is also true that in Godinez v. Moran, 509 U.S. 389, 402, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), the Supreme Court wrote that states “are free to adopt competency standards that are more elaborate” than the minimum standard of competence required to choose to represent oneself. But that flexibility does not authorize states to adopt competence standards without limit. While the statement in Godi-nez gave states some latitude in shaping their minimum competence standards, Faretta and Edwards set the relevant benchmarks. See Edwards, 554 U.S. at 173, 128 S.Ct. 2379 (“Godinez involved a State that sought to permit a gray-area defendant to represent himself.... But that holding simply does not tell a state whether it may deny a gray-area defendant the right to represent himself — the matter at issue here.”) (emphases in original). Because Imani’s abilities were close enough to Faretta’s to be indistinguishable, the Wisconsin courts unreasonably applied Faretta in denying Imani his right to represent himself." }, { "docid": "22362997", "title": "", "text": "represent oneself is a higher bar than Dusky’s competency to stand trial standard. Courts may “take realistic account of the particular defendant’s mental capacities,” and find some defendants “competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Id. at 177-78, 128 S.Ct. 2379. None of these cases precisely apply here, but they are instructive for then-reasoning. For instance, in Godinez the Court held the trial competency standard applies to plea hearings because “while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions ... during the course of a trial.” Godinez, 509 U.S. at 398, 113 S.Ct. 2680. The Court observed, however, that “the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Id. at 399, 113 S.Ct. 2680. And in Edwards the Court concluded that Godinez would not apply to self-representation because “a defendant who would choose to forgo counsel at trial presents a very different set of circumstances ... [and] calls for a different standard.” Edwards, 554 U.S. at 174-75, 128 S.Ct. 2379. The contrast between Godinez and Edwards shows the “competency” standard does not exist in a vacuum — it varies in relation to the task the defendant is expected to perform. A decision to stand trial or plead guilty is different from undertaking a self-defense at trial. Given this Supreme Court authority, any standard for equitable tolling due to mental impairment must evaluate whether the petitioner’s condition made it impossible to comply with the filing deadline. See Spitsyn, 345 F.3d at 799. We recognize the myriad circumstances at play — petitioners may be representing themselves, employing counsel, or relying on available prison resources while incarcerated. The inquiry focuses on the ability of petitioners to comply with what the law requires given then-particular circumstances. With these cases in mind, we conclude that eligibility for equitable tolling due to" }, { "docid": "18533729", "title": "", "text": "and “has sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding.” Dusky, 362 U.S. at 402, 80 S.Ct. 788 (internal quotation marks omitted). Those principles intersect where, as here, a defendant meets the Dusky standard for mental compe tence (despite irrational and nonsensical behavior) and, additionally, insists on representing himself during trial and sentencing. Must the trial court permit Defendant to represent himself? Until recently, the Supreme Court’s guidance had indicated that the answer was “yes.” See Godinez v. Moran, 509 U.S. 389, 398, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (“[W]e reject the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard.”); see also id. at 404, 113 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in the judgment) (“The Due Process Clause does not mandate different standards of competency at various stages of or for different decisions made during the criminal proceedings.”). And, like most of our sister circuits, we had so held. See United States v. Hernandez, 203 F.3d 614, 620-21 (9th Cir.2000) (“Where a defendant’s waiver of his Sixth Amendment right to counsel meets [the Faretta ] requirements, a court must permit the defendant to proceed pro se.”); id. at 620 n. 8 (“[A] defendant’s competence to waive the right to counsel is measured by the same standard under which competence to stand trial is evaluated.”). Quite understandably, then, the district court and the parties repeatedly referred to Defendant’s “absolute right” to represent himself. And, in response to Defendant’s valid waiver of his right to counsel, the district court granted Defendant’s request. While this case was pending on appeal, however, the Supreme Court decided Edwards, — U.S. —, 128 S.Ct. 2379, 171 L.Ed.2d 345. There, the Court addressed whether the general Dusky mental competence standard — as described in Godi-nez — applies to the question of mental competence for self-representation at trial. Edwards, 128 S.Ct. at 2383. The Court “concede[d] that Godinez bears certain similarities with" }, { "docid": "17021387", "title": "", "text": "about the governing legal question. Whatever the standard is, Godi-nez held that it applies across the board. The Supreme Court then qualified Godinez in Indiana v. Edwards, in which it upheld Indiana’s requirement that a defendant who wishes to represent himself must have the “mental capacity” to “conduct his trial,” which is a higher standard than competency to stand trial. 554 U.S. 164, 174, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). In Edwards, the defendant (whose motion to represent himself was denied) “suffered from schizophrenia,” which caused “delusions and ... marked difficulties in thinking.”.Id. at 168-69, 128 S.Ct. 2379. The Court held that the Constitution permits a state to limit the self-representation right for a defendant who “lacks the mental capacity to conduct his trial defense unless represented.” Id. at 174, 128 S.Ct. 2379. This holding seems to have broken the Godinez rule eschewing multiple competence standards for multiple purposes. Although Edwards was decided two years after Jordan’s criminal case became final on direct appeal in 2006, we may consider it here because Warden Hepp has raised it. See Moore v. Anderson, 222 F.3d 280, 285 (7th Cir. 2000) (nonretroactivity only “favors the state’s interest in finality” and thus the state may waive it). In Imani, we characterized Edwards as identifying “a narrow class of cases in which a defendant may not be competent to represent himself[.]” 826 F.3d at 946-47, 2016 WL 3434673 at *5. There was no evidence of such circumstances in Imani, where the trial judge paid little heed to Imani’s level of education and placed heavy weight on the rationality of Imani’s decision. Id. 826 F.3d at 941-43, 2016 WL 3434673 at *1-2. It is permissible, for instance, to deny self-representation to a defendant who “sufferfs] from mental illness or mental impairment.” Id. 826 F.3d at 946, 2016 WL 3434673 at *5. Imani also recognized, however, that there would be “gray-area” defendants. States may not resolve. doubts against self-representation and remain faithful to Faretta. In Imani, the defendant’s “abilities were close enough to Faretta’s as to be indistinguishable.” Id. In that situation, we found that the" }, { "docid": "8300808", "title": "", "text": "district court' was absolutely prohibited from doing so.”). We emphasize the word “may” because Edwards does seem to cap a trial court’s ability to foist counsel upon the unwilling. “Severe mental illness” appears to be a condition precedent. Certainly, the right to self-representation cannot be denied merely because a defendant lacks legal knowledge or otherwise makes for a poor advocate. See Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525 (“[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ”). And the Edwards Court repeatedly cabined its holding with phrases like “mental derangement,” 128 S.Ct. at 2386, “gray-area defendant,” id. at 2385, “borderline-competent criminal defendant,” id. at 2384, and, of course, “severe mental illness,” id. at 2388. Edwards himself, after all, suffered from schizophrenia and delusions, not just a personality disorder. So even if we were to read Edwards to require counsel in certain cases — a dubious reading — the rule would only apply when the defendant is suffering from a “severe mental illness.” Nothing in the opinion suggests that a court can deny a request for self-representation in the absence of this. Because there was no evidence before the trial court showing that Berry had such an affliction, Edwards was simply off the table. One final word on Edwards. The careful reader will ask whether it even matters in federal court. Edwards — Godinez too — dealt with state court proceedings. And the Supreme Court articulated its holding as a matter of what state courts may do, while remaining silent as to the powers of federal courts. See Edwards, 128 S.Ct. at 2388 (“[T]he Constitution permits States to insist upon representation by counsel for those competent enough to stand trial ... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.”) (emphasis added). Giving the case a literal reading, one would conclude that Edwards simply left the law undisturbed for purposes of federal criminal trials. But we don’t" }, { "docid": "6957890", "title": "", "text": "doing so. The court provided Davis standby counsel. He allowed standby counsel to advise him during trial and to conduct some tasks where a lawyer’s skills were needed, such as closing argument and jury instructions, while Davis maintained control over the examination of witnesses and the introduction of defense evidence. Compare Patterson, 140 F.3d at 775. Citing Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), Davis argues the district court should have denied him the right of self-representation because it was apparent he would be “unable and/or unwilling to follow the rules of the court” or acknowledge the court’s jurisdiction. Reed makes the same argument. But Edwards simply held that a State may insist on counsel for defendants whose “severe mental illness” makes them “not competent to conduct trial proceedings by themselves.” Id. at 177-78, 128 S.Ct. 2379. Edwards did not alter a fundamental premise of the constitutional right of self-representation — “a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ” Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); see Godinez v. Moran, 509 U.S. 389, 399-400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); United States v. Berry, 565 F.3d 385, 391 (7th Cir.2009). Like the unwise defendants in United States v. Johnson, 610 F.3d 1138, 1140 (9th Cir.2010), Davis and Reed “had the right to represent themselves and go down in flames if they wished, a right the district court was required to respect.” Having given the appropriate warnings and determined that the waiver of counsel was knowing and voluntary, the district court properly allowed Davis and Reed to exercise their constitutional right of self-representation. B. In addition to arguing he should not have been allowed to defend himself foolishly, Reed raises an additional issue. His conduct demonstrated a lack of rational understanding of the law and the proceedings, he argues, and therefore the district court erred by failing to determine whether he was legally competent to knowingly" }, { "docid": "8300804", "title": "", "text": "represent himself? Berry says the law takes account of this situation, accommodating such “gray-area” defendants — among whom he counts himself— by imposing a higher standard for electing to proceed pro se. A year ago we could have dispatched this argument summarily. Up to that point, the controlling authority was Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). In Godinez, the Supreme Court “rejected] the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard” governing competence to stand trial. Id. at 398, 113 S.Ct. 2680. Thie Court said individual states could adopt more demanding standards if they wanted to, but it was a matter of choice, not constitutional dictate. Id. at 402, 113 S.Ct. 2680. As far as the Constitution was concerned, defendants competent to stand trial were competent to represent themselves (at least when pleading guilty). Under Godinez, then, Berry would seem to lose. But, as Berry suggests, the Supreme Court’s recent decision in Edwards requires a deeper analysis. From one perspective, Edwards simply confirmed the Court’s parting remarks in Godinez — that states may force counsel upon an unwilling defendant who, despite competency to stand trial, suffers from a mental illness casting doubt upon his ability to serve as his own lawyer. However, the Court in Edwards didn’t think Godinez settled the matter. Ahmad Edwards was hauled into state court after a botched armed robbery. His mental condition vacillated throughout the pretrial stages: the court found him competent to stand trial at one hearing but incompetent. on two other occasions as a result of schizophrenia. After eight months of treatment in a local hospital, however, Edwards’s condition had improved, and the court decided he was fit to proceed. The court still had doubts about Edwards’s mental state, though, and therefore denied his request to proceed pro se. On appeal, he argued that since he was competent to stand trial, Indiana had no right — no constitutional authority — to prohibit him from" }, { "docid": "8300803", "title": "", "text": "amend. VI; Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); 28 U.S.C. § 1654. Yet, this right, like so many others, is not absolute. Edwards, 128 S.Ct. at 2384 (citing Martinez v. Court of Appeal of Cat., Fourth Appellate Dist., 528 U.S. 152, 163, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000), McKaskle v. Wiggins, 465 U.S. 168, 178-79, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), and Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525). For instance, a defendant can forfeit his right to self-representation by “deliberately engaging] in serious and obstructionist misconduct.” Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525. And a defendant can only elect self-representation by “knowingly and intelligently” waiving his right to counsel. Id. at 835, 95 S.Ct. 2525. Needless to say, a defendant who lacks competency to stand trial has no business representing himself. But what about a defendant who has the mental presence to stand trial but who still suffers from a mental defect that could impair his ability to represent himself? Berry says the law takes account of this situation, accommodating such “gray-area” defendants — among whom he counts himself— by imposing a higher standard for electing to proceed pro se. A year ago we could have dispatched this argument summarily. Up to that point, the controlling authority was Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). In Godinez, the Supreme Court “rejected] the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard” governing competence to stand trial. Id. at 398, 113 S.Ct. 2680. Thie Court said individual states could adopt more demanding standards if they wanted to, but it was a matter of choice, not constitutional dictate. Id. at 402, 113 S.Ct. 2680. As far as the Constitution was concerned, defendants competent to stand trial were competent to represent themselves (at least when pleading guilty). Under Godinez, then, Berry would seem to lose. But, as Berry suggests," }, { "docid": "22278336", "title": "", "text": "at times, would not have justified, let alone required, the involuntary deprivation of their constitutional right to represent themselves. Defendants next argue that they were not competent to represent themselves, Faretta notwithstanding, under the Supreme Court’s decision in Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). Until recently, if a defendant was determined to be competent to stand trial he was also deemed competent to represent himself. Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). The Supreme Court clarified in Edwards, however, that a trial court may insist on representation for a defendant who is competent to stand trial but who is suffering from severe mental illness to the -point where he is not competent to perform the more arduous task of representing himself. Edwards, 554 U.S. at 128 S.Ct. at 2388. The Court concluded that the constitutional guarantee of a fair trial permits a district court to override a Faretta request for defendants whose mental disorder prevented them from presenting any meanT ingful defense. Id. As an initial matter, we have not yet articulated the applicable standard of review to be applied to Edwards challenges. See United States v. Thompson, 587 F.3d 1165, 1171 & n. 2 (9th Cir.2009) (assuming abuse of discretion); United States v. Ferguson, 560 F.3d 1060, 1070 n. 6 (9th Cir. 2009). Because Edwards holds that the Constitution “permits” interfering with a Faretta request for “gray area” defendants, it suggests an abuse of discretion standard. See United States v. Berry, 565 F.3d 385, 391 (7th Cir.2009); United States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir.2009). However, that does not directly affect the question raised by the defendant here, which is when, if ever, the Constitution requires a court to impose counsel on a “gray area” defendant despite a voluntary and knowing waiver. Given the nature of the distinction between that which is constitutionally required and that which is merely constitutionally permitted, see Edwards, 554 U.S. at-, 128 S. Ct at 2385 (noting relevance of that distinction), the standard of review to be applied" }, { "docid": "6664195", "title": "", "text": "be interpreted as indicating that the court believed that Jermyn was incompetent to stand trial. According to the logic of his argument, if the trial court found him to be legally incompetent to represent himself, he was also legally incompetent to stand trial because the competency standard for standing trial is the same as for waiving counsel. Jermyn’s Initial Br. at 158 (citing Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)). He further asserts that the trial court’s ruling was one of competency because a court is not permitted to base its ruling on whether a defendant has the legal skills to defend himself, as that is not the appropriate inquiry under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Rather, when the accused seeks self-representation, the issue is whether a defendant “knowingly, intelligently and voluntarily waived the right to be represented by counsel.” Buhl v. Cooksey, 233 F.3d 783, 791 (3d Cir.2000). Thus, Jermyn’s argument is that we cannot view the statement as an observation concerning Jermyn’s lack of legal acumen, because to do so would mean that the trial court improperly denied him the' right of self-representation under Faretta. We are not convinced by either argument. In Godinez, the Court held that the competency standard for waiving counsel and for standing trial is the same, but it further found that, in order to waive the right to counsel, the waiver also must be knowing and voluntary. 509 U.S. at 400, 113 S.Ct. 2680. The fact is that the competency standard is only part of the inquiry, and we think the court was making a much broader statement. Bearing in mind that Jermyn’s request was made mid-trial, when the Court knew all too well Jermyn’s strange theory of the case and the direction that he, acting on his own, would take it, we view the court’s statement in context as its own reasonable conclusion that Jermyn should not be permitted to follow this course; it was not a narrow declaration that Jermyn lacked the mental ability to waive counsel" }, { "docid": "22979263", "title": "", "text": "to stand trial is evaluated. See id. at 397-400, 113 S.Ct. 2680. The standard for competence to stand trial requires nothing more than that a defendant have some minimal understanding of the proceedings against him. See Godinez, 509 U.S. at 396, 113 S.Ct. 2680. In Godinez, the Supreme Court rejected this circuit's more stringent requirement that a defendant who seeks to waive counsel must demonstrate the capacity for \"reasoned choice” among'the alternatives available to him before he will be permitted to represent - himself. See id. at 398, 113 S.Ct. 2680; Moran v. Godinez, 972 F.2d 263, 266-67 (9th Cir.1992). While the Court’s basic holding, standing alone, could plausibly be interpreted as undermining the requirement that the waiver of counsel be \"voluntary and intelligent,” the Court specifically preserved this requirement in Godinez: \"A finding that a defendant is competent to stand trial ... is not all that is necessary before he may be permitted to plead guilty or waive liis right to counsel. In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary. In this sense there is a ‘heightened’ standard for pleading guilty and for waiving the right to counsel, but it is not a heightened standard of competence.” 509 U.S. at 400-01, 113 S.Ct. 2680. The Court distinguished the competency inquiry from the \"voluntary and intelligent” inquiry on the ground that the focus of the former \"is the defendant’s mental capacity,” while the purpose of the latter is to determine “whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.” Id. at 401 n. 12, 113 S.Ct. 2680. Hernandez’s competence to waive his right to counsel is not at issue in the present appeal, because the district court did not deny his self-representation request on the ground that he was incompetent in the Godinez sense. Instead, the court denied his request — after asking Hernandez several technical legal questions relating to his potential sentence" }, { "docid": "11895470", "title": "", "text": "might be overlooked and the loss of the chance to obtain an attorney’s independent opinion on the wisdom of a guilty plea. Id. at 81,124 S.Ct. 1379. The state courts thought that Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), introduced the possibility of taking into account the defendant’s legal knowledge, but that is not what the case holds. In Edwards, the Court faced the problem of “a criminal defendant whom a state court found mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself.” Id. at 167, 128 S.Ct. 2379. In that situation, it held, the state may insist that the defendant proceed to trial with counsel. Mental competence, or mental functioning (as Faretta called it), the Court said, presents a distinct problem for self-representation. It acknowledged that Godinez had rejected the idea of a two-tier standard for competence in the circumstances presented there. “To put the matter more specifically, the Godinez defendant sought only to change his pleas to guilty, he did not seek to conduct trial proceedings, and his ability to conduct a defense at trial was expressly not at issue.” Id. at 173, 128 S.Ct. 2379. In addition, Godinez “involved a State that sought to permit a gray-area defendant to represent himself’ — a decision the Court held was permissible. Id. With respect'to the case before it, the Court began by “assuming] that a criminal defendant has sufficient mental competence to stand trial ... and that the defendant insists on representing himself during that trial. We ask whether the Constitution permits a State to limit that defendant’s self-representation right by insisting upon representation by counsel at trial — on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented.” Id. at 174, 128 S.Ct. 2379. It answered that question affirmatively, stressing throughout its explanation that it was focusing on mental competence. Some people, states may conclude, are competent enough to stand trial with the assistance of counsel, but lack sufficient competence to conduct their own defense. One" }, { "docid": "642083", "title": "", "text": "Edwards to hold that it was permissible to find Imani incompetent to represent himself. It is also true that in Godinez v. Moran, 509 U.S. 389, 402, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), the Supreme Court wrote that states “are free to adopt competency standards that are more elaborate” than the minimum standard of competence required to choose to represent oneself. But that flexibility does not authorize states to adopt competence standards without limit. While the statement in Godi-nez gave states some latitude in shaping their minimum competence standards, Faretta and Edwards set the relevant benchmarks. See Edwards, 554 U.S. at 173, 128 S.Ct. 2379 (“Godinez involved a State that sought to permit a gray-area defendant to represent himself.... But that holding simply does not tell a state whether it may deny a gray-area defendant the right to represent himself — the matter at issue here.”) (emphases in original). Because Imani’s abilities were close enough to Faretta’s to be indistinguishable, the Wisconsin courts unreasonably applied Faretta in denying Imani his right to represent himself. Finally, the Wisconsin Supreme Court’s conclusion that the trial court did not err by taking “into consideration the trial schedule when determining whether Imani was competent to proceed pro se” was also contrary to Faretta. See Imani, 786 N.W.2d at 54. Where a defendant invokes his right so late as to delay a trial or engages in “serious and obstructionist misconduct,” a judge may deny the exercise of the right of self-representation. Faretta, 422 U.S. at 834-35 & n.46, 95 S.Ct. 2525. But a late request would have no bearing on competence. Under Faretta, legal skill and experience are not required to be competent to represent oneself. Id. at 835, 95 S.Ct. 2525. And in any case, Imani made his request four weeks before trial and said he would not need any extra time to prepare. Faretta held it was a constitutional error to deny request made “weeks before trial.” Id. The judge would have been entitled to hold Imani to that assurance if he had later asked for a delay, but he could not" }, { "docid": "22362996", "title": "", "text": "expanded its use of the Dusky standard to pretrial proceedings. In Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), the Court held the same standard should apply in determining whether a defendant is competent to plead guilty and knowingly and voluntarily waive the right to assistance of counsel. Id. at 398, 113 S.Ct. 2680 (rejecting “the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard”). But in a 2008 case, the Supreme Court held a different standard for mental competency should apply to a defendant seeking self-representation at trial. In Indiana v. Edwards, the Court held defendants do not have a Sixth Amendment right to refuse court-appointed counsel and represent themselves if “they are not competent to conduct trial proceedings by themselves.” 554 U.S. 164, 178, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). Although the Court did not define precisely the self-representation competency standard, it did conclude competency to represent oneself is a higher bar than Dusky’s competency to stand trial standard. Courts may “take realistic account of the particular defendant’s mental capacities,” and find some defendants “competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Id. at 177-78, 128 S.Ct. 2379. None of these cases precisely apply here, but they are instructive for then-reasoning. For instance, in Godinez the Court held the trial competency standard applies to plea hearings because “while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions ... during the course of a trial.” Godinez, 509 U.S. at 398, 113 S.Ct. 2680. The Court observed, however, that “the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Id. at 399, 113 S.Ct. 2680. And in Edwards the Court concluded that" }, { "docid": "23015863", "title": "", "text": "determining why the district court denied Frazier-El’s pro se request and whether a denial on that basis was appropriate. The court explained that it was denying the request because Frazier-El’s “Moorish national” argument represented an effort “to argue matters which would not be permitted by this court.” The court continued: “I think Mr. Frazier-El is in a position where he is not competent because of arguments he has made to represent himself. However, this court is absolutely convinced that Mr. Frazier-El understands the nature of the proceedings and is able, if he so desires— he is an intelligent man — to assist in his own defense .... ” (emphasis added). The district court’s conclusion reflects a misunderstanding of the “competence” defendants must demonstrate before undertaking self-representation. “Competency” in the waiver of counsel context is coextensive with the “competency” necessary to stand trial. See Godinez, 509 U.S. at 399, 113 S.Ct. 2680 (holding that a defendant who waives his right to counsel need not be “more competent than a defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher mental functioning .... ”); see also Faretta, 422 U.S. at 835-36, 95 S.Ct. 2525 (while a defendant choosing self-representation must do so “competently and intelligently,” the defendant’s “technical legal knowledge” is “not relevant” to determining whether he is competent to waive his right to counsel). “Competency” represents the minimal ability to understand the nature of the trial proceedings and to assist in one’s own defense. See Godinez, 509 U.S. at 401 n. 12, 113 S.Ct. 2680 (“The focus of a competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the trial proceedings.”). It is the threshold issue in every waiver of counsel case; for if the defendant is incapable of understanding the adversary proceeding in which he is involved, no trial is possible, much less a trial with the defendant conducting his own representation. The district court, however, spoke of Frazier-El’s lack of “competence” in the same sentence that it pronounced him capable" }, { "docid": "18533730", "title": "", "text": "like most of our sister circuits, we had so held. See United States v. Hernandez, 203 F.3d 614, 620-21 (9th Cir.2000) (“Where a defendant’s waiver of his Sixth Amendment right to counsel meets [the Faretta ] requirements, a court must permit the defendant to proceed pro se.”); id. at 620 n. 8 (“[A] defendant’s competence to waive the right to counsel is measured by the same standard under which competence to stand trial is evaluated.”). Quite understandably, then, the district court and the parties repeatedly referred to Defendant’s “absolute right” to represent himself. And, in response to Defendant’s valid waiver of his right to counsel, the district court granted Defendant’s request. While this case was pending on appeal, however, the Supreme Court decided Edwards, — U.S. —, 128 S.Ct. 2379, 171 L.Ed.2d 345. There, the Court addressed whether the general Dusky mental competence standard — as described in Godi-nez — applies to the question of mental competence for self-representation at trial. Edwards, 128 S.Ct. at 2383. The Court “concede[d] that Godinez bears certain similarities with the present case,” but nevertheless held that Godinez did not control. Id. at 2385. “In Godinez, the higher standard sought to measure the defendant’s ability to proceed on his own to enter a guilty plea; here the higher standard seeks to measure the defendant’s ability to conduct trial proceedings.” Id. (emphases added). The Court then turned to the “open” question of the proper standard to measure a defendant’s competence to conduct trial proceedings. Id. It held that the question of mental competence for self-representation “calls for a different standard” than the question of mental competence for assistance of counsel at trial. Id. at 2386. The Court therefore recognized “a mental-illness-related limitation on the scope,of the self-representation right.” Id. at 2384. The Court explained that the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent" }, { "docid": "6664196", "title": "", "text": "observation concerning Jermyn’s lack of legal acumen, because to do so would mean that the trial court improperly denied him the' right of self-representation under Faretta. We are not convinced by either argument. In Godinez, the Court held that the competency standard for waiving counsel and for standing trial is the same, but it further found that, in order to waive the right to counsel, the waiver also must be knowing and voluntary. 509 U.S. at 400, 113 S.Ct. 2680. The fact is that the competency standard is only part of the inquiry, and we think the court was making a much broader statement. Bearing in mind that Jermyn’s request was made mid-trial, when the Court knew all too well Jermyn’s strange theory of the case and the direction that he, acting on his own, would take it, we view the court’s statement in context as its own reasonable conclusion that Jermyn should not be permitted to follow this course; it was not a narrow declaration that Jermyn lacked the mental ability to waive counsel and choose self representation. See Godinez, 509 U.S. at 401 n. 12, 113 S.Ct. 2680 (“The focus of a competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings”). We further conclude that our understanding the trial court’s statement as such does not mean that the trial court’s ruling violated Jermyn’s right of self-representation and the teachings of Faretta. To be sure, the Court in Faretta stated that “the defendant’s technical legal knowledge [is] not relevant to an assessment of his knowing exercise of the right to defend himself.” 422 U.S. at 836, 95 S.Ct. 2525. Instead, the test is whether the defendant “knowingly, intelligently and voluntarily waived the right to be represented by counsel.” Buhl, 233 F.3d at 791. Here, the trial court’s statement does not violate the dictates of Faretta because we understand it as conveying that the court would not allow Jermyn to disrupt the trial and pursue his own defense, based on the trial court’s understanding that there was more at stake," }, { "docid": "11895471", "title": "", "text": "he did not seek to conduct trial proceedings, and his ability to conduct a defense at trial was expressly not at issue.” Id. at 173, 128 S.Ct. 2379. In addition, Godinez “involved a State that sought to permit a gray-area defendant to represent himself’ — a decision the Court held was permissible. Id. With respect'to the case before it, the Court began by “assuming] that a criminal defendant has sufficient mental competence to stand trial ... and that the defendant insists on representing himself during that trial. We ask whether the Constitution permits a State to limit that defendant’s self-representation right by insisting upon representation by counsel at trial — on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented.” Id. at 174, 128 S.Ct. 2379. It answered that question affirmatively, stressing throughout its explanation that it was focusing on mental competence. Some people, states may conclude, are competent enough to stand trial with the assistance of counsel, but lack sufficient competence to conduct their own defense. One example the Court gave of such a person was someone suffering from mental derangement serious enough to deprive the person of a fair trial if he were to conduct his own defense. Id. at 175, 128 S.Ct. 2379. It concluded with this statement: “[T]he Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky [v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) ] but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Id. at 178, 128 S.Ct. 2379. Throughout the opinion, the emphasis is on competence, not on particular skill. The Court declined to accept Indiana’s invitation to adopt a more specific standard under which a defendant would not have the right to self-representation if he could-not communicate coherently with the court or a jury. Id. It also rejected Indiana’s request to overrule Faretta. Id. Rather than focusing on this line of U.S. Supreme Court decisions, the Wisconsin courts" }, { "docid": "17021386", "title": "", "text": "states may require of a defendant who wishes to represent herself. 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). There the Court held that when a defendant wishes to enter a guilty plea pro se, due process does not require that she meet any higher level of competency beyond the competency to stand trial and to waive her right to a trial knowingly and intelligently. Id. at 402, 113 S.Ct. 2680. But the Court also noted, perhaps trimming Faretta a bit, that “States are free to adopt competency standards that are more elaborate” than the minimum standard the Constitution requires. Id. It did so, however, as part of a holding rejecting the proposition that “the competency standard for pleading guilty or waiving the right to counsel is higher than the competency standard for standing trial.” Id. at 391, 113 S.Ct. 2680. It held that there is only one competency standard. Thus, its comment that states might wish to adopt more elaborate standards must be understood as a comment about evidence, not a comment about the governing legal question. Whatever the standard is, Godi-nez held that it applies across the board. The Supreme Court then qualified Godinez in Indiana v. Edwards, in which it upheld Indiana’s requirement that a defendant who wishes to represent himself must have the “mental capacity” to “conduct his trial,” which is a higher standard than competency to stand trial. 554 U.S. 164, 174, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). In Edwards, the defendant (whose motion to represent himself was denied) “suffered from schizophrenia,” which caused “delusions and ... marked difficulties in thinking.”.Id. at 168-69, 128 S.Ct. 2379. The Court held that the Constitution permits a state to limit the self-representation right for a defendant who “lacks the mental capacity to conduct his trial defense unless represented.” Id. at 174, 128 S.Ct. 2379. This holding seems to have broken the Godinez rule eschewing multiple competence standards for multiple purposes. Although Edwards was decided two years after Jordan’s criminal case became final on direct appeal in 2006, we may consider it here because Warden Hepp" } ]

[ { "docid": "18337322", "title": "", "text": "the government’s brief, and it is not disputed, * * * that possession of distilled spirits is legal to some extent in every one of the fifty states of the union. Therefore, we find ourselves in agreement with those district courts in addition to the trial court here, which have held that there is no danger of self-incrimination resulting from the requirement * * * relating to the placing of stamps and taxing of distilled spirits.” Brown v. United States, 5 Cir., 1968, 401 F.2d 769, 770. See also Anderson v. United States, 5 Cir., 1968, 403 F.2d 206; Shoffeitt v. United States, 5 Cir., 1968, 403 F.2d 991. Finally, appellant’s contention that he did not receive a fair trial because of the alleged inexperience of counsel, and because of the trial judge’s active participation in the questioning of witnesses, is completely without merit. The record indicates that appellant’s counsel adequately defended him. Furthermore, appellant misconceives the proper role of a federal trial judge. “He is not a bump on a log, nor even a referee at a prizefight. He has not only the right, but he has the duty to participate in the examination of witnesses when necessary to bring out matters that have been insufficiently developed by counsel.” United States v. Ostendorff, 4 Cir., 1967, 371 F.2d 729, 732. Affirmed." } ]

[ { "docid": "22088609", "title": "", "text": "the name of certain persons without their knowledge or consent, enabling the appellants to withdraw the proceeds of such loans on forged signatures; (5) appellants privately arranged excessive, unsecured loans for themselves and their associates and then entered false minutes in the bank records to represent that such loans had been approved by the loan committee; (6) many other devious methods and subterfuges were employed in connection with loans and their disbursement: checks were cashed without endorsement by the payee, loans were made to persons whose accounts were overdrawn, false addresses were given for out-of-state borrowers, false loan applications were submitted, forged corporate resolutions were used, loans were made to fictitious borrowers, and the proceeds of many substantial loans were withdrawn immediately, often in cash. In all, appellants authorized or arranged several hundred thousand dollars in fraudulent loans during the short four and one-half months of their control of the Five Points bank. Only a small portion of these loans was ever recovered. I Conduct of the Trial Appellants assert that they were denied a fair trial because (1) the court frustrated, harassed and disparaged counsel for the defense; (2) the court’s extensive colloquy with counsel and witnesses alike created an atmosphere extremely prejudicial to appellants; (3) cross-examination was unduly restricted; and (4) the impaired ability of the court to hear the testimony of the witnesses and the objections of counsel was highly prejudicial to appellants. At the outset it should be noted that this case involved eleven defendants each having his own attorney. The trial of the case lasted four and one-half weeks, with the court receiving into evidence the testimony of some sixty witnesses, and approximately 650 documents. Obviously, in a trial of this magnitude and complexity, the trial judge is entitled to a great deal of latitude in order to make certain that it progresses in an orderly and efficient manner. Appellants contend, however, that the court overstepped the bounds of judicial propriety by harassing and humiliating counsel, in the presence of the jury, thereby depriving them of a fair and impartial trial. In considering these contentions," }, { "docid": "3532193", "title": "", "text": "of the witness Hill was given in exchange for the reduction of his sentence. This direction by the trial judge did not prohibit any mention of the interest of the witness Hill which had already been demonstrated by cross-examination, but it only prohibited what would have been an incorrect reference that the reduction had been given as a trade. The trial judge had ,told the jury and counsel the reasons for the reduction in the sentence of the witness Hill, and the time when the sentence was reduced. Any comment or reference to a trade would have been incorrect, and the trial court was proper in instructing the counsel not to so argue. They certainly would have been free to again point out to the jury the relationship of the witness to the parties, and the fact that he had already been sentenced and the original sentence reduced, and that he was then in prison. We find no improper or undue limitation upon the closing arguments of counsel. Appellants urge that there is insufficient evidence to sustain the conviction of the appellants. We have examined the record and find that substantial evidence was produced to support the conviction. The proper rule was long ago set out by this court in Wilder v. United States, 100 F.2d 177 (10th Cir.). See also Mason v. United States, 408 F.2d 903 (10th Cir.); McGee v. United States, 402 F.2d 434 (10th Cir.). In this connection, it should be borne in mind that the appellants were charged in the initial counts with aiding and abetting. The implication of the appellant Bishop is perhaps less extensive than that of the appellant Nipp. However, testimony of the witnesses placed Bishop at the several places and with the other parties at the critical times and the testimony of the witness Hill directly implicates Bishop as a participant. It is apparent that the jury believed the testimony of the witness Hill in this respect and on other points. We also find no error in the instructions. Clearly the instructions did not permit the jury to find the appellants" }, { "docid": "14294321", "title": "", "text": "measured by a standard of fairness and impartiality. He is not a mere moderator. It is his duty to conduct an orderly trial and to make certain as far as possible that there is no misunderstanding of the testimony of the witnesses. Considering the conduct of the trial in its entirety, we conclude that the trial judge did not commit error. After a Government witness testified on direct examination, counsel for appellant requested an opportunity “to make a request under the statute of the Jenkes [sic] case.” Out of the presence of the jury but in the presence of the defendant, the Government’s attorneys, the appellant’s attorney and Postal Inspector Brown, the court considered counsel’s request thoroughly. The Government was then requested to “turn over to defense counsel any statement alleged to have been made by this witness.” The court went into the matter carefully and cautiously, but no “statement” within the purview of the Jencks Act, 18 U.S.C. § 3500, or any decisions interpreting it, was shown to exist. Counsel for appellant then requested the court to instruct the postal inspector to confer with him “so I can find out from him what previous statements, if any, this witness had made to someone for the purpose of cross examination.” The postal inspector did not testify before the jury during the trial. The court stated that it would not order or instruct the inspector to submit or not to submit to the requested interview. The record does not show what effort, if any, counsel for appellant made to discuss the case with the inspector or that the inspector had refused to discuss the matter with appellant’s counsel. The Supreme Court has placed an affirmative duty on the trial judge to administer the Jeneks Act. Final decision as to production must rest within “the good sense and experience” of the district judge, guided by the standards outlined in Supreme Court decisions. We find no violation of the Jeneks Act or any other error in the rulings of the district judge on this issue. The admissibility of evidence in the trial of" }, { "docid": "7778919", "title": "", "text": "direct examination, the Government requested permission to reopen so that it could elicit testimony from Barnes that she had agreed to cash the check because she knew that Paul Miller had recently been released from prison and surmised that he did not have a checking account. See id. at 11-13. Paul Miller’s counsel again objected. See id. at 12. The judge responded: We’ve got to know. All this is ridiculous. We have to have some explanation of what went on, why she cashed a check for some total stranger. The jury is entitled to know that. It’s already been brought out he was in jail. It’s not prejudicial at all if it was already brought out. It seems to me the jury is entitled to know why a total stranger would go and handle a cashier’s check. Id. at 12, 13. During a five-minute recess, the prosecutor explained to Barnes that she could testify only that Paul Miller had a criminal record but could say nothing about the nature of the offense for which he had been convicted; the Government was then permitted to elicit the disputed testimony. The jury ultimately returned guilty verdicts against both appellants on all counts, and this appeal ensued. Paul Miller continues to challenge the admission of the evidence pertaining to his prior conviction. Leroy Miller argues that the evidence at trial was insufficient to sustain a conviction for the conspiracy charged in Count One. II. Analysis A. Paul Miller Paul Miller asserts that the District Court erred both in admitting the evidence of his prior conviction and in failing to issue a limiting instruction, and that each error furnishes an independent ground for reversal. Although we do not find the trial court’s treatment of the disputed evidence to be wholly free of legal defect, we conclude that the disputed rulings do not warrant a reversal of Paul Miller’s conviction. 1. Admission of the Evidence a. General Test The test for analyzing the admissibility of evidence of prior criminal convictions and other “bad acts” is well established. See Huddleston v. United States, 485 U.S. 681," }, { "docid": "12008516", "title": "", "text": "in an old house of some type and there we met Mr. Graves from the bank. Ray was testifying concerning a meeting involving himself, Jenkins, and Drane, their conversation at that meeting, and Drane’s telephone call arranging a meeting which the jury could reasonably infer was the meeting with Graves. He was not testifying concerning what he “heard” about a conversation at a meeting involving Drane. United States v. Perez, 489 F.2d 51 (5th Cir. .1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). There was ample evidence establishing a conspiracy involving Buckelew, Jenkins, Scallion, and Ray, and Ray’s testimony concerning facts within his knowledge, if believed by the jury, was sufficient to show Drane’s know ing participation in that conspiracy. United States v. Warner, 441 F.2d 821 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). Whether the trial judge erred in denying motions for a new trial. Aside from arguing that the trial judge erred with respect to issues previously considered, appellants argue that various procedural errors were committed which denied them their rights to due process. (1) It is said that, .at commencement of the trial, after the jury had been impaneled and while all of the witnesses were in the courtroom, the trial judge identified each defendant and his attorney; that one of the witnesses later made an in court identification of Jenkins concerning a single confrontation that had taken place more than four and a half years prior to trial; and that, accordingly, the identification was “tainted,” with resulting prejudice to appellants. However, the record shows that the trial judge identified only counsel for the government and for each defendant prior to sequestration of the witnesses. Moreover, Jenkins could not have been prejudiced since he admitted that he wrote the check about which the witness testified. (2) It is argued that the trial judge erred in giving certain specified instructions to the jury over objection, but what therein was error is neither specified nor apparent. The government pointed this out in its brief and stated that" }, { "docid": "16450571", "title": "", "text": "cross examination, comprised mostly of leading and argumentative questions geared towards making the following point: the Mayor had no legal basis for denying plaintiffs transfer, this action was carried out while plaintiff was a candidate for May- or, and defendant was not prudent in making this decision. The Federal Rules of Evidence provide that “[t]he court may interrogate witnesses, whether called by itself or by a party.” Fed.R.Evid. 614(b); see also United States v. Gonzalez-Soberal, 109 F.3d 64, 72 (1st Cir.1997) (“It is well settled that the trial judge has a perfect right — albeit a right that should be exercised with care — to participate actively in the trial proper.”). The judge’s discretion to participate in the direct and cross examination of witnesses is cabined by the importance of maintaining an appearance of impartiality: There are, however, limits to the behavior that is permitted judges. For example, the judge’s participation must be balanced; he cannot become an advocate or otherwise use his judicial powers to advantage or disadvantage a party unfairly. An inquiry into the judge’s conduct of the trial necessarily turns on the question of whether the complaining party can show serious prejudice. Id. (internal citations and quotation marks omitted). On the cold record before us, the district court’s questions suggest some skepticism about the mayor’s proffered justification for denying Rivera’s transfer. Ideally, the district court should have avoided this suggestion. However, given the brevity of the exchange and the mild nature of the questioning, we conclude that the district court’s interjections did not result in “serious prejudice.” Id. Furthermore, we find it significant that the judge issued a lengthy instruction to the jury that mitigated any prejudice arising from his interrogation of Ortiz. If I asked any questions, and I did ask questions in this case, which it is my duty to do so if I have to, you should not be influenced by anything that I said or did. The purpose of asking questions by me was to either highlight something that I thought was unclear from the evidence, something that was not developed by the" }, { "docid": "23404498", "title": "", "text": "To allow prior derogatory remarks about a judge to cause the latter’s compulsory recusal would enable any defendant to cause the recusal of any judge merely by making disparaging statements about him. Such a bizarre result clearly is not contemplated in section 144. 340 F.Supp., at 957. We hold that Bray’s affidavit was inadequate to establish prejudice and bias warranting recusal by the trial judge. Bray refers to certain colloquies which took place out of the presence of the jury which he contends show that the judge was prejudiced and should have recused himself and that by reason of his participation, he was denied a fair trial. The comments cited, although admittedly not models of judicial restraint and decorum, do not give rise to reversible error. A trial court has the power to direct a trial along recognized lines of procedure in a manner reasonably thought to bring about a just result; and non-prejudicial comment may be made by the court during trial. Lowther v. United States, 455 F.2d 657 (10th Cir. 1972), cert. denied, 409 U.S. 857, 93 S.Ct. 139, 34 L.Ed.2d 102 (1972). Even though not condoned and certainly not encouraged we have nevertheless held: that a judge’s remark characterizing defense counsel’s statement as “ridiculous” did not give rise to reversible error, Cooper v. United States, 403 F.2d 71 (10th Cir. 1968); that a judge’s comment on the “pathetic” nature of a witness was not prejudicial, Whitlock v. United States, 429 F.2d 942 (10th Cir. 1970); and that a judge’s request that counsel examine his witness “without beating around the bush” did not constitute plain error or prejudice the defendants. United States v. MacKay, 491 F.2d 616 (10th Cir. 1973), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974). The complaints made by Bray do reflect the judge’s attitude and reactions to specific incidents occurring at trial. They involve comments by the judge, when goaded, which were unjudicial. To sustain disqualification under § 144, supra, there must be demonstrated bias and prejudice of the judge arising from an “extrajudicial source” which renders his trial participation" }, { "docid": "1444883", "title": "", "text": "more than one or two questions are involved, the proper procedure is “to call both counsel to the bench, or in chambers and suggest what [the judge] wants done. That the judge may be able to examine witnesses more skillfully or develop a point in less time than counsel requires does not ordinarily justify such participation. That is not his function.” As Judge Learned Hand once said, “Prosecution and judgment are two quite separate functions in the administration of justice; they must not merge.” Nevertheless, we cannot find reversible error on the present record. Admittedly this is not a case in which the judge’s questioning was directed solely “toward much needed clarification rather than challenges of the testimony.” But the boundaries of proper judicial interrogation may be less clearly visible while the questioning is in progress than in the brilliant glare of hindsight. We have emphasized in the past the responsibility of trial counsel to make objection, out of the hearing of the jury, if it appears to him that the trial judge’s participation may endanger his client’s rights. In the present case, any prejudicial effect from the trial court’s participation would have come not from any single question, but from continued participation apparently on the side of the prosecution. Accordingly, there was ample time to object before serious harm was done. With no objection made at trial, the present record does not warrant reversal. B. In his motion for a new trial, and again in this court, appellant suggests that certain of the trial court’s remarks during bench conferences may have come to the attention of the jury. We may assume that these remarks, some of which are set forth in the margin, would have operated to appellant’s prejudice had they been overheard. It appears, however, that no suggestion was ever made to the trial court that these comments might have come to the attention of the jury until the verdict had been returned. We recognize that counsel may be placed in an unenviable position if he must suggest to a trial judge the unwisdom of the latter’s conduct." }, { "docid": "5465740", "title": "", "text": "Carter on cross-examination prejudiced the jury and deprived her of a fair trial. On cross-examination of Inspector Hull, an investigator for the United States Postal Service, defense counsel asked if Carter was ever required to pay back to the United States Postal Service $1,800.50 for a “NSF” check. Inspector Hull answered in the affirmative. On redirect examination, the prosecutor questioned Inspector Hull concerning the circumstances surrounding the “NSF” check. Inspector Hull testified that on January 23, 1981, Carter accepted a check from Mary E. Lee and that “very seldom do we get a personal check for the purchase of stamp stock of that size.” Due to the abnormal size of the check, Inspector Hull conducted an investigation which revealed that Carter knew Mary E. Lee, the alleged check maker. On direct examination of Carter, her defense counsel again made mention of the “NSF” check and questioned Carter about her repayment of the $1,800.50 to the United States Postal Service. On cross-examination, the prosecutor questioned Carter concerning her relationship with Mary E. Lee, the alleged check maker. Carter testified that she knew a “Mary Cook” but that she did not know a Mary E. Lee. The prosecutor then asked if “Mary Cook is actually Mary Lee?” Carter replied, “That is what Mr. Hull said.” Finally, the prosecutor, implying that Mary E. Lee and Mary Cook were the same person and that Carter knew of Mary E. Lee’s checkbook, asked, “You don’t know if she [Mary Cook] left a checkbook ... in the name of Mary Lee?” To this Carter replied “No, I wouldn’t.” Based upon this testimony, appellant claims that the Government insinuated that Carter fraudulently cashed the check, thereby prejudicing the jury and denying appellant a fair trial. Our review of the admissibility of this testimony is guided by the well-established principle that a trial judge has broad discretion in assessing the relevancy of the testimony proffered. We will reverse a district court’s ruling on the admissibility of evidence only upon a clear showing of an abuse of discretion on the part of the trial judge. United States v. West," }, { "docid": "1570632", "title": "", "text": "rather “playing the insurance game” and making substantial money from overlapping policies, appellant offered to introduce an out of court statement by Mrs. Kenyon, made two weeks prior to trial, that she was sorry that Saugus hospital had closed down because that meant she could no longer collect certain insurance benefits. The court rejected the offered testimony as inadmissible hearsay. Appellant argues that the testimony should have been accepted as a prior inconsistent statement of a witness. See Fed.R. Evid. 613(b). Such testimony is admitted not for the truth of the matter asserted in the prior statement but to impeach the credibility of the witness. When asked for an offer of proof at trial, however, appellant was unable to demonstrate that the offered testimony was inconsistent with anything Mrs. Kenyon had said at trial. Nor does he demonstrate any inconsistency on appeal. The testimony was also offered as evidence of Mrs. Kenyon’s state of mind when she bought the insurance policies. The court rejected that offer, reasoning that Mrs. Kenyon’s purported statement, made two weeks before trial, was not relevant to her state of mind at the time she bought the policies some three to five years earlier. We find no error. B. Record of other financial transactions Among the charges of fraud against appellant was that he stole money from clients by taking checks from them made payable to him personally under the pretense that the funds would be applied to insurance premiums. The government introduced seven checks that appellant had received from a Mary Robertson and alleged that he had illegitimately cashed them and retained the money for his own use. Appellant attempted to introduce into evidence another check — drawn by a Gladys Robertson, payable to him and returned for insufficient funds — as well as a financial record of charges to his bank account resulting from that and perhaps other returned checks. These documents were offered to show a “business relationship” in which situations occurred entitling appellant to seek personal reimbursement from the Robertsons. “[T]he government is alleging there would be no reason for Joseph Martin" }, { "docid": "6752888", "title": "", "text": "then because the one we’re talking about — in fact, I flew up to Albany, New York on a bi-plane, two wing cockpit but the Debonnaire, the one I had, was being reworked at the time and I was utilizing commercial aviation. James argues that the trial court’s comment constituted an unwarranted display of disbelief of the defense witness. The other comment upon which Mr. Price bases his argument occurred earlier in the trial during the cross-examination by defense counsel of a bank employee, Denise Novinger. “DEFENSE COUNSEL: Normally when people are going to kite checks, they don’t write them to themselves from their own accounts, do they? THE WITNESS: No, not in the same bank. This is not normal. THE COURT: It’s a naive way of kiting. DEFENSE COUNSEL: It doesn’t effect the same purpose, your Honor. THE WITNESS: You’re robbing Peter to pay Paul, basically. DEFENSE COUNSEL: You don’t gain anything by writing a check to yourself and bouncing it, do you? THE WITNESS: No sir. A federal judge has the right and the duty to facilitate the orderly progress of a trial by direct participation. Questions which aid in clarifying testimony of a witness, expedite examination or confine it to relevant matters are proper if made in a nonprejudieial manner. U. S. v. Pena-Garcia, 505 F.2d 964, 967 (9th Cir. 1974). While the clarification of testimony is proper, the trial court must avoid any appearance of partiality or hostility toward one side. Rogers v. U. S., 609 F.2d 1315, 1318 (9th Cir. 1979). While we do not approve of the trial court’s interventions in the instant case, a careful examination of the comments discloses no prejudice to the defendant. In light of the strong evidence of Mr. Price’s guilt and two cautionary instructions given by the trial court, we find no reversible error. III. Sufficiency of the Evidence to Support the Convictions of Mr. Price Mr. Price argues that while untruthful, the bad weather letter was innocent, and that neither it nor the “welcome aboard” letter was written with an intent to defraud. Alternatively, he contends that" }, { "docid": "14294320", "title": "", "text": "GEWIN, Circuit Judge: A jury found the appellant guilty of charges contained in a two-count indictment and he was given concurrent one-year sentences under each count. Count One charged that he unlawfully retained and concealed a stolen print-punch money order issuing machine and United States postal money orders with the intent to convert them to his use and gain in violation of 18 U.S.C. § 641. Count Two charged him with unlawfully, knowingly and wilfully appropriating the same property to his own use in violation of 18 U.S.C. § 1707. Appellant contends that the following errors were committed: (1) the district judge questioned the witnesses excessively and inappropriately; (2) the court should have ordered a postal inspector to grant an interview to appellant’s counsel for the purpose of determining whether a government witness had made prior inconsistent oral statements; (3) improper evidence was admitted; (4) the Assistant United States Attorneys made improper arguments to the jury; and (5) the evidence was not sufficient to sustain the conviction. The conduct of the trial judge must be measured by a standard of fairness and impartiality. He is not a mere moderator. It is his duty to conduct an orderly trial and to make certain as far as possible that there is no misunderstanding of the testimony of the witnesses. Considering the conduct of the trial in its entirety, we conclude that the trial judge did not commit error. After a Government witness testified on direct examination, counsel for appellant requested an opportunity “to make a request under the statute of the Jenkes [sic] case.” Out of the presence of the jury but in the presence of the defendant, the Government’s attorneys, the appellant’s attorney and Postal Inspector Brown, the court considered counsel’s request thoroughly. The Government was then requested to “turn over to defense counsel any statement alleged to have been made by this witness.” The court went into the matter carefully and cautiously, but no “statement” within the purview of the Jencks Act, 18 U.S.C. § 3500, or any decisions interpreting it, was shown to exist. Counsel for appellant then requested" }, { "docid": "7778937", "title": "", "text": "cert. denied, 425 U.S. 961, 96 S.Ct. 1744, 48 L.Ed.2d 206 (1976). In sum, we find no error in the jury’s verdict. III. Conclusion None of the issues raised by the appellants warrants reversal. Testimony from one witness concerning her awareness of Paul Miller’s criminal record was properly admitted to show the witness’ motive for participating in the alleged check-forging scheme, while admission of similar testimony from a second witness was harmless error. The evidence amply supports Leroy Miller’s conviction for conspiracy. We therefore affirm both convictions. Affirmed. . Leroy Miller was also charged with forgery and uttering under D.C.Code §§ 22-3841, 22-3842(a) (1981). . Paul Miller's counsel told the jury: What we ask you, ladies and gentlemen, is to consider who had a scheme here, who profited from this particular — these transactions in the bank, who had access to the checks, who forged the bank officers’ names to those checks. You will hear the testimony from the witnesses on the witness stand, and you must determine the credibility of each witness. I ask you to pay particular attention to those witnesses. Pay attention to their motives, their demeanor. Who, in fact, was arrested and cut a deal with the United States Attorney's office to attempt to save herself. These are the matters that we will go into. Trial Tr. I at 26. . Mann testified that shortly after Paul Miller and she began their relationship, Miller \"told me that he had just gotten out of prison from a previous offense that he had committed. When he told me that, it was like a shock. So I didn’t want to continue just talking to him and just casually seeing him like I was.” Trial Tr. I at 38. . The judge actually precipitated the Government's request when, upon the conclusion of the Government’s direct examination, he asked Barnes whether Paul Miller had told Barnes \"why he wanted you to cash the check.” Trial Tr. II at 11. The Government interrupted before Barnes could answer and informed the court at side-bar that Barnes would probably testify that she believed that" }, { "docid": "5465741", "title": "", "text": "maker. Carter testified that she knew a “Mary Cook” but that she did not know a Mary E. Lee. The prosecutor then asked if “Mary Cook is actually Mary Lee?” Carter replied, “That is what Mr. Hull said.” Finally, the prosecutor, implying that Mary E. Lee and Mary Cook were the same person and that Carter knew of Mary E. Lee’s checkbook, asked, “You don’t know if she [Mary Cook] left a checkbook ... in the name of Mary Lee?” To this Carter replied “No, I wouldn’t.” Based upon this testimony, appellant claims that the Government insinuated that Carter fraudulently cashed the check, thereby prejudicing the jury and denying appellant a fair trial. Our review of the admissibility of this testimony is guided by the well-established principle that a trial judge has broad discretion in assessing the relevancy of the testimony proffered. We will reverse a district court’s ruling on the admissibility of evidence only upon a clear showing of an abuse of discretion on the part of the trial judge. United States v. West, 670 F.2d 675, 682 (7th Cir.), cert. denied sub nom. King v. United States, 457 U.S. 1124, 102 S.Ct. 2944, 73 L.Ed.2d 1340 (1982); United States v. Lampson, 627 F.2d 62, 66 (7th Cir.1980). Appellant initially claims that the Government had no right to elicit testimony concerning the “NSF” check. Appellant admits, however, that her defense counsel initiated inquiry into the subject matter of the check while cross-examining a Government witness. In a similar situation, this court stated, “When a party opens up a subject, even though it may not be strictly relevant to the case, he cannot complain on appeal if the opposing party introduces evidence on the same subject.” United States v. Bolin, 514 F.2d 554, 558 (7th Cir.1975). By initiating the inquiry into the $1,800.50 “NSF” check, on cross-examination of a Government witness and on direct examination of Carter, defense counsel “opened the door” for the Government to elicit and develop testimony which fully advised the jury of all the facts surrounding the making and cashing of the “NSF” check. United States" }, { "docid": "1444881", "title": "", "text": "to the latter issue but not to the former. Accordingly, we do not think it was error to list, in an instruction on corroboration, only those matters in evidence that could have been used to corroborate the prosecutrix’s story. II. Appellant’s final argument is that the trial court’s participation in the proceedings was such as to indicate wrongfully to the jury his belief in appellant’s guilt. Our examination of the entire record has convinced us that many of the instances relied upon by appellant to support his claim show nothing more than that the trial court ran a taut courtroom. Nevertheless, several matters require further elucidation. A. The court took a particularly active part in the examination of three witnesses. Much of the direct examination of the medical examiner was in fact carried out by the court. When appellant called a witness to testify to prosecutrix’s bad reputation for chastity, and, specifically, to a conversation three years previously in which she had indicated a willingness to have intercourse with appellant, the court interrupted direct examination to elicit the names and ages of those persons with whom the witness had discussed the prosecutrix’s reputation. When the prosecutor had finished his cross-examination, the court examined the witness again to emphasize those factors which, it believed, rendered the witness’s testimony unreliable. Finally, the defense called a staff attorney for the Legal Aid Agency to testify with regard to an interview with the defendant that he had taken at the time of the preliminary hearing. After cross-examination by the prosecution, the court examined the witness to bring out inconsistencies between appellant’s earlier story and his present one. We have previously had occasion to note that, although a federal judge in a criminal case has the power to participate in'the examination of witnesses when it is necessary to “[make] the case clear to the jurors,” this power should be sparingly exercised. Particularly when the questioning is designed to elicit answers favorable to the prosecution, “it is far better for the trial judge to err on the side of [a]bstention from intervention in the case.” If" }, { "docid": "13253844", "title": "", "text": "324 F.2d 817. That case is not pertinent here. In Hull, no charge was given regarding accomplice testimo ny. In this case there was no objection to the charge given nor to the refusal to give the charge requested. The charge given was adequate. We find no error. In this same specification, Easterly now claims that the jury could have been misled by the following instruction: “In considering the weight and credibility to be given the testimony of Robert Lewis Lamb, you may take into consideration the evidence introduced concerning his use of narcotics.” This particular instruction was specifically requested by Easterly and was adopted by him from the instructions sought by Ingram. Easterly will not be heard to complain of its inclusion. The appellant’s third assignment of error is that the district court, by interrogation and comment, prejudiced the appellant and denied him the right to a fair trial and effective counsel. During the examination of Hendricks, the printer who sold the paper used in printing the counterfeit notes, the court took over the interrogation and asked questions which clarified the identification of the purchasers of the paper. It might have been just as well here as in many another situation for the court to permit counsel to try the case without benefit of participation by the court. However, the trial judge is not a mere moderator. He has the right and duty to make inquiry of witnesses when such questioning will serve the ends of justice. We do not find that the trial judge failed in the exercise of that restraint which is to be exercised in the judicial interrogation of a witness. The appellant next urges that the court’s inclusion in its instruction on impeachment of witnesses of the following: “Evidence relating to any admission or statement claimed to have been made by the defendant outside of court should be considered with caution and weighed with great care.” was plain error requiring reversal. This language related to the defendant Lamb and was not the subject of any objection by Easterly. The authorities which he cites are not" }, { "docid": "21548302", "title": "", "text": "favored the prosecution, resulting in the deprivation of appellant’s right to a fair trial. Since defense counsel did not object to the court’s interjections at trial, this court must review the alleged error under the plain error doctrine and in terms of whether such participation by the trial court affected substantial rights of the appellant. See Fed.R.Crim.P. 52(b). As this court has stated, A trial judge is more than a “mere moderator” of a trial * * *. [The trial judge] has the prerogative, and at times the duty, of eliciting facts he deems necessary to the clear presentation of the issues. To this end he may examine witnesses who testify, so long as he preserves an attitude of impartiality and guards against giving the jury an impression that the court believes the defendant is guilty. United States v. Gleason, 766 F.2d 1239, 1243 (8th Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 801, 88 L.Ed.2d 777 (1986), (quoting Llach v. United States, 739 F.2d 1322, 1329-30 (8th Cir.1984)). After a thorough examination of the record we conclude that the trial judge’s questioning neither lacked the color of neutrality nor improperly emphasized the prosecution’s case. See United States v. Bland, 697 F.2d 262, 265-66 (8th Cir.1983). The record reflects that the trial judge’s questions were made for the purpose of clarifying ambiguous testimony and that no prejudice resulted. We also find that the trial court’s comment after the verdict regarding the final witness’ “flagrant perjury” does not warrant reversal. Because the remark was made after the verdict, it cannot be deemed prejudicial. While such comments could indirectly reveal the judge’s feelings throughout the trial, see United States v. Bland, supra, 697 F.2d at 266, such is not the case here where the judge’s comments went to the last witness presented. Any attitude which the judge adopted at this point in the case is not properly attributed to questions he raised earlier in the trial. V. We also reject appellant’s argument that the district court improperly admitted into evidence two audio cassette tapes which had been seized from appellant’s residence following" }, { "docid": "3113965", "title": "", "text": "that the trial judge, by his personal examination of witnesses or statements made in the jury’s presence, indicates his personal belief in the veracity of certain witnesses called by the Government, his disbelief of Robinson, or his belief that the defendants were guilty. Although he frequently interrupted witnesses or counsel and sometimes asked questions, his obvious purpose in most instances was to clarify ambiguities or questions raised by the witness’ testimony or the counsel’s interrogation, which is permissible. United States v. Lamont, 565 F.2d 212, 220 (2d Cir. 1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978); United States v. Bernstein, 533 F.2d 775, 796 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976). After defense counsel had extensively elicited upon cross-examination of certain witnesses that they had admittedly lied on prior occasions, the judge sought to avoid repetition by stating or bringing out through his own summary questions that the witnesses had frankly conceded their prior perjury but were asserting that they were now testifying truthfully pursuant to agreements to cooperate with the Government. We are unpersuaded that this procedure implied to the jury that the judge believed these witnesses. Moreover, his instructions make clear that the jury alone was to determine the credibility of the witnesses. We are satisfied that any prejudice to appellants from the trial judge’s statements, comments, and questioning of witnesses, was minimal and rendered harmless by the overwhelming proof of the defendants’ guilt. United States v. Boatner, supra, 478 F.2d at 742. We find no merit in appellants’ other claims of error. Since one of the objects of the conspiracy was to obstruct the Government’s investigation into their ongoing heroin-smuggling operation, evidence of their activities in furtherance of this objective was properly admitted, including Robinson’s unsuccessful effort to induce Garces to sign a letter falsely exonerating some of the defendants, arrangements for concealment of Garces in Washington, threats to Garces’ life, and instructions to Manners to destroy her passport and falsely state that she had gone to Europe on legitimate business. United States v. Floyd," }, { "docid": "1444882", "title": "", "text": "to elicit the names and ages of those persons with whom the witness had discussed the prosecutrix’s reputation. When the prosecutor had finished his cross-examination, the court examined the witness again to emphasize those factors which, it believed, rendered the witness’s testimony unreliable. Finally, the defense called a staff attorney for the Legal Aid Agency to testify with regard to an interview with the defendant that he had taken at the time of the preliminary hearing. After cross-examination by the prosecution, the court examined the witness to bring out inconsistencies between appellant’s earlier story and his present one. We have previously had occasion to note that, although a federal judge in a criminal case has the power to participate in'the examination of witnesses when it is necessary to “[make] the case clear to the jurors,” this power should be sparingly exercised. Particularly when the questioning is designed to elicit answers favorable to the prosecution, “it is far better for the trial judge to err on the side of [a]bstention from intervention in the case.” If more than one or two questions are involved, the proper procedure is “to call both counsel to the bench, or in chambers and suggest what [the judge] wants done. That the judge may be able to examine witnesses more skillfully or develop a point in less time than counsel requires does not ordinarily justify such participation. That is not his function.” As Judge Learned Hand once said, “Prosecution and judgment are two quite separate functions in the administration of justice; they must not merge.” Nevertheless, we cannot find reversible error on the present record. Admittedly this is not a case in which the judge’s questioning was directed solely “toward much needed clarification rather than challenges of the testimony.” But the boundaries of proper judicial interrogation may be less clearly visible while the questioning is in progress than in the brilliant glare of hindsight. We have emphasized in the past the responsibility of trial counsel to make objection, out of the hearing of the jury, if it appears to him that the trial judge’s participation may" }, { "docid": "5465746", "title": "", "text": "“NSF” check was improper in that it attempted to show that Carter fraudulently drafted and forged the “NSF” check. Defense counsel, however, as we pointed out earlier, initiated the inquiry into the “NSF” check during his direct examination of Carter. On cross-examination, the prosecutor properly reviewed the same subject matter covered on direct examination and questioned Carter concerning the “NSF” check, including her relationship with the check maker, Mary E. Lee. The rule is that a witness may not be impeached by a contradiction on collateral matters elicited on cross-examination. United States v. Harris, 542 F.2d 1283, 1306 (7th Cir.1976) (citing United States v. Lambert, 463 F.2d 552, 557 (7th Cir.1972)). In this instance the Government accepted Carter’s answers concerning the collateral matter of Carter’s relationship with Mary E. Lee and proceeded with cross-examination. The Government did not attempt to impeach Carter’s testimony on this issue through the use of its own witness. For this reason, we hold that the Government’s cross-examination of Carter was proper. D. CLOSING ARGUMENT Appellant next contends that the prosecutor’s closing argument, attacking Carter’s credibility and speculating as to why she changed her previous testimony, prejudiced the jury thus constituting reversible error. To place the prosecutor’s remarks in their proper context we must briefly review the testimony at trial. On direct examination of Carter, defense counsel attempted to establish that Carter used public transportation and that on April 15, 1981, it would have been physically impossible for Carter to have boarded public transportation at the Irving Park Postal Station, travel twenty-two blocks south and thirty-three blocks east to the Wicker Park Postal Station, receive stamps from Anna Shelby, and return on public transportation to her window clerk position all within a one-hour lunch period. To this end Carter testified that during this period she did not drive to work but that she used public transportation, though she did have access to her boyfriend’s automobile on Saturday. Later in her direct examination, Carter attempted to explain her earlier testimony and stated that she had registered the title to her boyfriend’s automobile in her name. She testified" } ]

[ { "docid": "23446090", "title": "", "text": "HATCHETT, Circuit Judge: In reversing this public employee termination case, we distinguish Thomason v. McDaniel, 793 F.2d 1247 (11th Cir.1986) and hold that the placing of stigmatizing information in a public employee’s personnel file or in an internal affairs report (public records of Florida pursuant to state law) constitutes publication sufficient to implicate liberty interests requiring protection through procedural due process of law proceedings. FACTS On February 14, 1981, Plant City, Florida, hired Donald F. Buxton as a police officer. In June, 1982, the Plant City Police Department investigated Buxton for allegedly assaulting Olin English during the course of an arrest. Plant City’s Police Chief, Troy W. Surrency, assigned Officer William Hysell to conduct an internal affairs investigation. Officer Hysell interviewed Buxton. Officer Hysell also interviewed the witnesses to the arrest. Officer Hysell concluded that Buxton had physically abused English prior to placing him under arrest. On June 22, 1982, Buxton met with Chief Surrency, Lieutenant Ruffin Cain, and Officer Hysell in Chief Surrency’s office. Chief Surrency advised Buxton that he was being suspended with pay because of the Olin English incident and that he would be contacted again at the end of the week. On June 25, 1982, Buxton again met with Chief Surrency, Lt. Cain, and Officer Hy-sell. Chief Surrency terminated Buxton for violation of departmental policies which he listed in detail, effective June 26, 1982. The meeting lasted between five and ten minutes. Section 4.03 of Plant City’s Personnel Rules sets forth a grievance procedure available to all city employees. Buxton did not request a hearing on his termination; he contends that he was not aware that he was entitled to such a hearing or that the grievance procedure existed. Chief Surrency sent a Notice of Termination to the Florida Criminal Justice Standards and Training Commission (FCJSTC), in compliance with Fla.Stat. § 943.23 (1982), indicating that Buxton had been terminated on June 25, 1982. On March 1, 1983, the Division of Standards and Training filed an administrative complaint with the FCJSTC seeking to suspend or revoke Buxton’s certification as a law enforcement officer. On October 9, 1984," } ]

[ { "docid": "598748", "title": "", "text": "Hardy Decl. ¶ 6 and Ex. A thereto.) The FBI released 81 pages of this material to plaintiff in January 1997, with the names and identifying information of FBI Special Agents and FBI support employees redacted pursuant to FOIA Exemptions 6 and 7(C), but declined to release any additional pages on the basis that other subjects of the investigation remained at large. (Id. and Exs. B-C.) During the pendency of this litigation, SIFO conducted a new search for public source material. (Id. at ¶ 7 and Ex. D.) This time, SIFO located approximately 278 pages in the 281B-SI-45838 sub-file. (Id.) Of these pages, 154 pages did not pertain to plaintiff, and 40 pages were duplicates of the 81 pages previously released. (Id.) Therefore, on October 24, 2008, the FBI released an additional 84 pages of public source material that it had withheld in 1997 due to the then-pending investigation, once again withholding pursuant to FOIA Exemptions 6 and 7(C) the names and identifying information of FBI Special Agents and FBI support employees as well as those of third parties merely mentioned in the records. (Id.) It appears that the newspaper articles and other public source documents were not redacted; rather, names and identifying information of FBI personnel and third parties were removed from notations made by agency personnel in the margins around the public source material. (See id. Ex. D.) Because additional SIFO records remain to be processed, the only issues before the Court at this time are whether, as defendant claims, it has disclosed all responsive, non-exempt records located in FBIHQ’s files and all responsive, non-exempt public source records in SIFO’s files. ANALYSIS I. Summary Judgment Standard In a FOIA case, summary judgment may be granted to the government if “the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Greenberg v. U.S. Dep’t of Treasury, 10 F.Supp.2d 3, 11 (D.D.C.1998); see Fed.R.Civ.P. 56(c). The Court may award summary judgment based solely on" }, { "docid": "11164832", "title": "", "text": "the company where the plaintiff worked; include only other employees who were similarly situated with respect to performance, qualifications, and conduct; the plaintiff and the other similarly situated employees must have shared a common supervisor; and treatment of the other employees must have occurred during the same RIF as when the plaintiff was discharged. Id. at 617-18. Plaintiffs sought company-wide personnel information “on any present or former employees at the supervisor level or above,” and personnel records of all employees in the parts department who were laid off, terminated, or retired between 1989 and 1998. The magistrate judge to whom the discovery issue was assigned limited the scope of plaintiffs’ discovery request to employees who were similarly situated to the plaintiffs. Plaintiffs filed a motion asking the district court to modify the magistrate judge’s order but the district court declined. When requesting discovery in an age discrimination suit, the “other employees’ circumstances [must be] close enough to [plaintiffl’s to make comparisons productive.” Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir.1994). District court judges “have substantial discretion to curtail the expense and intrusiveness of discovery” in limiting an adverse party’s request for broad discovery of personnel files. Id. (citation omitted). The district court limited discovery to the relevant corporate department, similarly situated employees, time period, and decisionmakers. Where the district court was uncertain as to possible relevance, the judge conducted an in camera review of the documents, after which a determination was made. There was no abuse of discretion. B. Summary Judgment 1. Standard of review We review de novo a district court’s ruling on a motion for summary judgment. Gordon v. United Airlines, 246 F.3d 878, 885 (7th Cir.2001) (citations omitted). To succeed on a motion for summary judgment, the moving party must show, through the pleadings and other record materials, such as depositions, answers to interrogatories, admissions, and affidavits, that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. All" }, { "docid": "773126", "title": "", "text": "S.Ct. at 884 (Emphasis added.) Affirming dismissal of an action which alleged deprivation of procedural due process by discharge from employment under certain stigmatizing conditions, the Eighth Circuit, in Pollock v. Baxter Manor Nursing Home, 706 F.2d 236 (8th Cir.1983) (per curiam), quoted with approval the following language from the district court opinion of Chief Judge Waters: Before a ‘liberty’ interest is implicated, in employee discharge cases however, there must be publication of the reasons for termination, the publication must occur at the hands of the governmental employer, the charges must be defamatory, and the charges must be false. Buhr v. Buffalo Public School Dist., 509 F.2d 1196 (8th Cir.1974); Cato v. Collins, 539 F.2d 656 (8th Cir.1976); Codd v. Velger, 429 U.S. 624 [97 S.Ct. 882, 51 L.Ed.2d 92] (1977); Seal v. Pryor, 670 F.2d 96 (8th Cir.1982). Id. at 237 [quoting Pollock v. Baxter Man or Nursing Home, 536 F.Supp. 673, 680 (W.D.Ark.1982); emphasis supplied]. From my reading of the foregoing cases as well as Morris’ inability to direct the Court’s attention to any specific federal constitutional guarantee safeguarding the interest he asserts was invaded by Fuller, I conclude that there is no interference with a constitutionally protected liberty interest here by Fuller because even though he may have caused some injury to Morris’ reputation by releasing the report, Fuller still was not the governmental employer who terminated Morris from employment as police chief. Having determined Defendant Fuller’s motion for summary judgment to be well-taken, it is hereby GRANTED. B. In Count III of his Complaint, Morris maintains that the release to the news media of portions of the investigative report, being a violation of city ordinances, regulations, and established personnel procedures, constitutes a deprivation of liberty interest without due process of law. Codd v. Velger, supra, held that a discharged public employee who complains that he has been stigmatized by the release of certain information in the course of his termination from employment must affirm atively assert as one of the essential elements of his case that the information was in fact substantially false. In that case," }, { "docid": "21353331", "title": "", "text": "36, 37. Plaintiffs continue to allege that they have “filed timely grievances, requested arbitration hearings in accordance with set policy and have been subjected to denials based upon fathom [sic] reasoning, without due process of law.” Id. ¶ 38. Plaintiffs assert that “neither the Unions nor the City have been complying with either the Collective Bargaining Agreements or the Personnel Rules and Regulations,” because they have “failed to investigate employee grievance claims in a timely manner” and to keep adequate records, which has resulted in delayed arbitrations; have collaborated to dismiss or settle pending grievance cases without the knowledge or approval of the employees concerned; and have tampered with Plaintiffs’ files by inserting forged documents or removing documents favorable to Plaintiffs. Id. ¶¶ 39-40. According to Plaintiffs, the Labor Union Defendants and the District “have treated employee claims in a perfunctory manner, acted arbitrarily, negligently, incompetently, and have willfully delayed and/or failed to provide fair, prompt, and effective representation and hearing.” Id. ¶ 41. Finally, Plaintiffs assert that they “have attempted to raise their claims and concerns before the City’s Personnel Board and the City’s Labor Board and have exhausted such claims as the faux system set in place by the Defendants permit.” Id. ¶ 42. Plaintiffs do not, however, specify which, if any, administrative remedies each Plaintiff has pursued. Similarly, Plaintiffs allege that Defendants’ actions have “resulted in poverty, homelessness, economic disadvantage and suffering both emotionally and physically based upon unlawful termination, unlawful transfer, unlawful demotion, unlawful denial of benefits, and unlawful cancellation of benefits,” but do not specify which, if any, of these alleged injuries each Plaintiff has suffered. Id. ¶ 43. C. Plaintiffs’ Asserted Claims for Relief Based upon the foregoing allegations, Plaintiffs assert eight “Claims for Relief.” Count 1 is styled as a claim for breach of employment contract and alleges that the District “and its employees have an employment contract, consisting in part of a Collective Bargaining Agreement between the City and the Unions, and present and past employment practices,” and that all Defendants’ “failures to engage in meaningful mediation, other dispute resolution efforts, or" }, { "docid": "23446105", "title": "", "text": "to an at-will employee fired arbitrarily for no reason at all. This would be an unwarranted interference with public employer personnel decisions and a result certainly not required by the due process clause of the fourteenth amendment. Buxton v. City of Plant City, Florida, Order No. 86-737-Civ-T-15C, at 5-6 (1987). Based on the finding of “no publication,” the district court granted Plant City’s and Chief Surrency’s motion for summary judgment on Buxton’s liberty interest claim. Buxton now contends that the presence of stigmatizing material in his non-confidential personnel file and the internal affairs report of the English case, both a part of the public record, forecloses his freedom to pursue employment opportunities. Citing Kaprelian v. Texas Woman’s University, 509 F.2d 133, 139 (5th Cir.1975), Buxton suggests that we tailor the issue to “whether the governmental entity made the ‘charges public in any official or intentional manner, other than in connection with the defense of [the] action?’ ” Buxton contends that this ease should focus on whether the stigmatizing information has been disseminated in any manner by Plant City and Chief Surrency. If so, Buxton argues that his liberty interest is necessarily implicated. Buxton bases this argument on the fact that he has been foreclosed from several employment opportunities because of information in his personnel file and the internal affairs report. Although the district court relied on Thomason v. McDaniel, presuming that the report in Thomason v. McDaniel was a matter of public record, Buxton argues that nothing in that case supports this presumption. Buxton argues that Thomason v. McDaniel is distinguishable because the court’s inquiry turned on whether proof of the foreclosure of other law enforcement opportunities existed, whereas the district court in this case found that stigmatizing information in his personnel file and internal affairs report are likely to foreclose his employment opportunities. Buxton cites Swilley v. Alexander, 629 F.2d 1018 (5th Cir.1980) (where an employer placed a reprimand letter with stigmatizing charges in an employee’s personnel file, a public record) to argue that his liberty interest has been similarly implicated. Plant City and Chief Surrency rebut Bux-ton’s liberty" }, { "docid": "23446104", "title": "", "text": "analysis. Citing Thomason v. McDaniel, 793 F.2d 1247 (11th Cir.1986), the district court relied on our holding that a discharged part-time police officer “did not satisfy the requirement of publication because he ha[d] failed to establish that any disclosure of the reasons for the discharge, that is, the substance of the complaints, was ever made to the general public.” Thomason v. McDaniel, at 1250. The district court found Buxton to be in a similar situation; Buxton failed to demonstrate that Plant City and Chief Surrency published the events surrounding his discharge. The district court opined that a finding of publication in Buxton’s situation was discouraged by sound public policy: To find publication here would mean that no matter how discrete a public employer is in avoiding publicity, a police officer who is discharged after an investigation reveals stigmatizing circumstances would be entitled to a hearing even though the officer had no right to continued employment. Ironically, the public employer would have to give a hearing to an at-will employee fired for just cause, but not to an at-will employee fired arbitrarily for no reason at all. This would be an unwarranted interference with public employer personnel decisions and a result certainly not required by the due process clause of the fourteenth amendment. Buxton v. City of Plant City, Florida, Order No. 86-737-Civ-T-15C, at 5-6 (1987). Based on the finding of “no publication,” the district court granted Plant City’s and Chief Surrency’s motion for summary judgment on Buxton’s liberty interest claim. Buxton now contends that the presence of stigmatizing material in his non-confidential personnel file and the internal affairs report of the English case, both a part of the public record, forecloses his freedom to pursue employment opportunities. Citing Kaprelian v. Texas Woman’s University, 509 F.2d 133, 139 (5th Cir.1975), Buxton suggests that we tailor the issue to “whether the governmental entity made the ‘charges public in any official or intentional manner, other than in connection with the defense of [the] action?’ ” Buxton contends that this ease should focus on whether the stigmatizing information has been disseminated in any manner" }, { "docid": "23083443", "title": "", "text": "issue. NRS 288.150.2(u) (providing that “the policies for the transfer and reassignment of teachers is a subject for mandatory collective bargaining”) (emphasis added). There is no indication in the language of the statute that this does not include policies regarding disciplinary transfers. And while a teacher transferred for disciplinary reasons may have a cause of action under a collective bargaining agreement, this would not rise to a constitutionally-protected interest inasmuch as it was not an interest created by state law. Finally, we agree with the district court that Mustafa failed to demonstrate grounds on which reconsideration of denial of his motion for summary judgment could be granted. Mustafa did not present the district court with newly discovered evidence or demonstrate that the district court committed clear error or manifest injustice, nor has there been an intervening change in controlling law. See School Dist. No. 1J, Multnomah County v. ACandS, Inc. 5 F.3d 1255, 1263 (9th Cir.1993). D. Deprivation of a liberty interest Mustafa contends that the district deprived him of a constitutionally-protected liberty interest when it transferred him from Clark amid allegations of sexual misconduct and refused to remove documents related to his attempted discharge and arbitration from his personnel file. The termination of a public employee which includes publication of stigmatizing charges triggers due process protections. Board of Regents v. Roth, 408 U.S. at 573, 92 S.Ct. 2701; see also Matthews v. Harney County, 819 F.2d 889, 891 (9th Cir.1987) (“[A] liberty interest is implicated in the employment termination context if the charge impairs a reputation for honesty or morality_”). However, to take advantage of these protections, an employee must show that “(1) the accuracy of the charge is contested; (2) there is some public disclosure of the charge; and (3) the charge is made in connection with termination of employment.” Id. at 891-892. If a liberty interest is thereby implicated, the employee must be given an opportunity to refute the stigmatizing charge. Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). While the district court’s finding that the charges were not publicized may" }, { "docid": "5202016", "title": "", "text": "Midland Bank, N.A., 30 F.3d 339, 343 (2d Cir.1994) (internal quotation marks and citation omitted). Walsh cannot establish that he is entitled to relief under 42 U.S.C. § 1983 for his “stigma-plus” claim. See generally Segal v. City of New York, 459 F.3d 207, 212-13 (2d Cir.2006) (describing elements of a “stigma-plus” claim). He alleges two relevant publications of allegedly stigmatizing statements: (1) reports contained in the files of the Suffolk County Police Department (“SCPD”), and (2) his own statements during a job interview with the Central Intelligence Agency (“CIA”) regarding why he was terminated from his job with the SCPD. An employee’s liberty interest is not ordinarily implicated by statements in connection with his termination of employment if there has been no public disclosure of the reasons for the discharge. “Since the ... communication was not made public, it cannot properly form the basis for a claim that petitioner’s interest in his ‘good name, reputation, honor, or integrity’ was thereby impaired.” Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (footnote omitted). In Brandt v. Board of Coop. Educ. Servs., 845 F.2d 416 (2d Cir.1988), we concluded that when a “plaintiff can show neither actual disclosure nor a likelihood of any future disclosure of the stigmatizing allegations subsequently removed from his personnel file, he has failed to establish a violation of his protected liberty interest in his good name, reputation, honor, or integrity.” Id. at 418 (internal quotation marks and citation omitted); see also McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216-17 (2d Cir.2006); McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 280-81 (2d Cir.1999). Indeed, counsel for defendants has stipulated that no document in Walsh’s file or any other document concerning him at the SCPD will ever be made available to any third party. Walsh has not referred to any evidence in the record that suggests that any information in his personnel file has been or will be released by the defendants. The district court properly noted that it is “insufficient for a party opposing summary judgment" }, { "docid": "22365808", "title": "", "text": "per week. Although Llamas eventually trained to become an “opener,” he was not particularly successful in that endeavor. After just a few months, Kearns reassigned Llamas to other roles in the sweepstakes scheme. By August 2004, Llamas was serving as the Center’s “room boss” or “office manager,” and his weekly earnings had jumped to approximately $800. As office manager, Llamas passed out “leads” (a victim’s name and phone number) to the various operators, maintained a board listing the operators’ successful pitches, and provided technical support for the Center’s computers and telephones. Llamas was also responsible for personnel matters, including the calculation of employees’ weekly earnings and enforcement of Kearns’s operational rules at the Center. For example, Grimes testified that Llamas once sent him home because he arrived late for work. Llamas continued in his role as the Kearns Call Center’s office manager until December 2004, when he withdrew from the fraudulent sweepstakes scheme and returned to California. Although Kearns continued to operate the Center after Llamas’s departure, the fraud scheme eventually unraveled. In April 2006, an operator from the Center, attempting to “reload” a victim, instead reached the victim’s son (who, unfortunately for the Center, was a judicial officer). The federal authorities were promptly notified of the scheme and, on May 16, 2006, Llamas was apprehended in California. B. On December 5, 2006, Llamas was one of twelve defendants charged in an eighty-six count superseding indictment returned in the Western District of North Carolina. The indictment charged Llamas with conspiracy to defraud the United States, in contravention of 18 U.S.C. § 371; forty-two counts of wire fraud, in violation of 18 U.S.C. § 1343; conspiracy to commit money laundering, in contravention of 18 U.S.C. § 1956(h); and nineteen counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1). On November 26, 2007, Llamas pleaded guilty straight up, without a plea agreement, to all sixty-three of the offenses lodged against him by the indictment. On August 29, 2008, following Llamas’s guilty pleas, the probation office prepared and submitted his final Presentence Investigation Report (the “PSR”). The PSR estimated that the" }, { "docid": "22365807", "title": "", "text": "they represented insurance or government agencies and occasionally threatening their victims with prosecution. No prize money was ever paid, of course, and the fraud scheme continued in this manner until the victims were no longer willing to cough up additional funds. The call center at issue in this appeal was operated by Michael Kearns, one of appellant Llamas’s codefendants. Kearns moved to Costa Rica in 2002 and, with the assistance of Joshua Grimes (another codefendant), began operating his call center (the “Kearns Call Center” or “Center”) in 2003. In November 2003, Kearns hired Charles Cummins — a childhood friend of Llamas — to work at the Center. With Kearns’s approval, Cummins invited Llamas to Costa Rica to participate in the fraud scheme. In March 2004, Llamas moved from California to San Jose, Costa Rica, and began working for Kearns at the Center. When Llamas first arrived in Costa Rica, he played a relatively minor role at the Kearns Call Center, serving as a translator and security guard and earning between 400 and 600 U.S. dollars per week. Although Llamas eventually trained to become an “opener,” he was not particularly successful in that endeavor. After just a few months, Kearns reassigned Llamas to other roles in the sweepstakes scheme. By August 2004, Llamas was serving as the Center’s “room boss” or “office manager,” and his weekly earnings had jumped to approximately $800. As office manager, Llamas passed out “leads” (a victim’s name and phone number) to the various operators, maintained a board listing the operators’ successful pitches, and provided technical support for the Center’s computers and telephones. Llamas was also responsible for personnel matters, including the calculation of employees’ weekly earnings and enforcement of Kearns’s operational rules at the Center. For example, Grimes testified that Llamas once sent him home because he arrived late for work. Llamas continued in his role as the Kearns Call Center’s office manager until December 2004, when he withdrew from the fraudulent sweepstakes scheme and returned to California. Although Kearns continued to operate the Center after Llamas’s departure, the fraud scheme eventually unraveled. In April 2006," }, { "docid": "7412248", "title": "", "text": "426 U.S. at 348, 96 S.Ct. at 2079, “since the ... communication was not made public, it cannot properly form the basis for a claim that petitioner’s interest in his ‘good name, reputation, honor, or integrity’ was thereby impaired.” In support of publication, Cooley argues that the letter itself is sufficient evidence. On the bottom of the document there is a designation indicating that a carbon copy of the letter is being forwarded to Cooley’s personnel file. The PHFA employee manual contains a provision that in the event of dismissal, the statement evidencing the event will be placed in the personnel file of the terminated employee. Cooley submits that this alone raises a genuine issue of material fact removing this case from summary judgment. We note that Cooley has not offered any evidence of actual dissemination of his termination letter or its contents to potential future employers. In addition, Cooley has not offered any evidence with regard to the regular procedures of the agency in responding to requests by future employers. Cooley relies upon Perri v. Aytch, 724 F.2d 362 (3d Cir.1983), to support his conclusion of a recognizable liberty interest. In Perri, a state court employee, challenging her termination, brought an action against court officers. A letter informed her that her dismissal was due to circumstances surrounding her arrest for a controlled substance violation. The employee alleged that the letter impugned her character, and, as part of her personnel file, could reasonably be expected to be communicated to future employers and prevent her from obtaining other employment. We reversed the district court’s entry of summary judgment in favor of the employer, stating that Perri should have been given the opportunity to develop the facts with respect to the liberty interest violation. In addition, we held that the defendant employer should likewise have the opportunity to show that the reasons for dismissal were neither published nor disseminated. Three years after our decision in Perri, the Supreme Court cautioned in Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), that Federal Rule of Civil Procedure 56(c) compels" }, { "docid": "5202017", "title": "", "text": "(1976) (footnote omitted). In Brandt v. Board of Coop. Educ. Servs., 845 F.2d 416 (2d Cir.1988), we concluded that when a “plaintiff can show neither actual disclosure nor a likelihood of any future disclosure of the stigmatizing allegations subsequently removed from his personnel file, he has failed to establish a violation of his protected liberty interest in his good name, reputation, honor, or integrity.” Id. at 418 (internal quotation marks and citation omitted); see also McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216-17 (2d Cir.2006); McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 280-81 (2d Cir.1999). Indeed, counsel for defendants has stipulated that no document in Walsh’s file or any other document concerning him at the SCPD will ever be made available to any third party. Walsh has not referred to any evidence in the record that suggests that any information in his personnel file has been or will be released by the defendants. The district court properly noted that it is “insufficient for a party opposing summary judgment ‘merely to assert a conclusion without supplying supporting arguments or facts.’ ” Walsh v. Suffolk County Police Dep’t, No. 06-CV-2237, 2008 WL 1991118, at *6, 2008 U.S. Dist. LEXIS 36465, at *18 (E.D.N.Y. May 5, 2008) (quoting BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996)). None of the statements included in Walsh’s personnel files can be considered “published” for these purposes. Walsh can only proceed, then, under a theory of “compelled self-publication” related to his own disclosure to the CIA of the reasons given by the SCPD for his termination. That leaves the question of whether Walsh’s own statements to the CIA are actionable. We have never decided whether, as a matter of law, so-called “compelled self-publication” can provide the basis for relief in the “stigma-plus” context. We need not reach that issue in this case, however, because Walsh does not challenge the substantial truth of the allegedly stigmatizing statements he made to the CIA. Walsh admits that he was questioned by the police regarding an incident with a" }, { "docid": "23446106", "title": "", "text": "by Plant City and Chief Surrency. If so, Buxton argues that his liberty interest is necessarily implicated. Buxton bases this argument on the fact that he has been foreclosed from several employment opportunities because of information in his personnel file and the internal affairs report. Although the district court relied on Thomason v. McDaniel, presuming that the report in Thomason v. McDaniel was a matter of public record, Buxton argues that nothing in that case supports this presumption. Buxton argues that Thomason v. McDaniel is distinguishable because the court’s inquiry turned on whether proof of the foreclosure of other law enforcement opportunities existed, whereas the district court in this case found that stigmatizing information in his personnel file and internal affairs report are likely to foreclose his employment opportunities. Buxton cites Swilley v. Alexander, 629 F.2d 1018 (5th Cir.1980) (where an employer placed a reprimand letter with stigmatizing charges in an employee’s personnel file, a public record) to argue that his liberty interest has been similarly implicated. Plant City and Chief Surrency rebut Bux-ton’s liberty interest contention in two arguments. First, they contend that they have not deprived Buxton of his liberty interest without due process because they have not published any false stigmatizing charges about him. In its simplest form, they argue that Buxton failed to prove any publication of the events surrounding his discharge. Plant City and Chief Surrency argue that the internal affairs report at issue in this case is a public record under Florida Statute § 119.01 (1987). Because the internal affairs report is a public record, they were required by chapter 119 to provide a copy of the report to the Winter Haven Police Department upon request. Non-compliance with chapter 119 would have subjected them to the risk of criminal sanctions. Consequently, they lacked the intent required for publication when they made the report available. Citing Thomason v. McDaniel, they argue that filing a report in the public records in accord with state law does not constitute publication sufficient for a finding of a liberty interest deprivation. Likewise, allowing access to records upon receipt of" }, { "docid": "23083444", "title": "", "text": "it transferred him from Clark amid allegations of sexual misconduct and refused to remove documents related to his attempted discharge and arbitration from his personnel file. The termination of a public employee which includes publication of stigmatizing charges triggers due process protections. Board of Regents v. Roth, 408 U.S. at 573, 92 S.Ct. 2701; see also Matthews v. Harney County, 819 F.2d 889, 891 (9th Cir.1987) (“[A] liberty interest is implicated in the employment termination context if the charge impairs a reputation for honesty or morality_”). However, to take advantage of these protections, an employee must show that “(1) the accuracy of the charge is contested; (2) there is some public disclosure of the charge; and (3) the charge is made in connection with termination of employment.” Id. at 891-892. If a liberty interest is thereby implicated, the employee must be given an opportunity to refute the stigmatizing charge. Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). While the district court’s finding that the charges were not publicized may be problematical, the court was warranted in granting summary judgment on this claim. In the end, Mustafa was not terminated, but rather was transferred. See In re Selcraig, 705 F.2d 789, 795 (5th Cir.1983) (“official publication of a stigmatizing charge ... without discharge is not of itself constitutionally prohibited”). Moreover, harm to reputation alone is insufficient to implicate an individual’s liberty interest. Paul v. Davis, 424 U.S. 693, 711-712, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Even more, Mustafa, by virtue of his arbitration hearing if not the January 19th and 24th hearings, was afforded the opportunity to clear his name. See Komlosi v. New York State Office of Mental Retardation & Developmental Disabilities, 64 F.3d 810, 817-818 (2d Cir.1995) (an arbitration hearing pursuant to a collective bargaining agreement would afford the required name-clearing hearing). E. Section 1981 and 1983 claims Mustafa has presented a triable issue of material fact with respect to his §§ 1981 and 1983 national origin discrimination claim against Edward Goldman, the Assistant Superintendent of Clark County School District, with regard" }, { "docid": "22365816", "title": "", "text": "of his victims’ unusual vulnerabilities. Although the Government concedes that the court erred in this respect, it nevertheless asks us to rely on other aspects of the record to affirm the court’s application of the vulnerable victim adjustment. Second, Llamas maintains that, because he lacked supervisory authority over his eoconspirators, the court improperly applied the aggravating role adjustment. Third, Llamas challenges the restitution order, asserting that the court erred in finding him jointly and severally liable for financial losses caused by other Costa Rican fraud schemes. Notably, the Government also concedes that the court erred in calculating the amount of loss underlying the restitution order. We assess these sentencing contentions in turn. A. First, Llamas challenges the district court’s application of the vulnerable victim adjustment under Guidelines section 3Al.l(b)(l), which provides for a two-level increase in a defendant’s offense level “[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim.” Section 3Al.l(b)(l) thus creates a two-prong test for assessing the application of the vulnerable victim adjustment. See United States v. Stella, 591 F.3d 23, 29 (1st Cir.2009). First, a sentencing court must determine that a victim was unusually vulnerable. See USSG § 3A1.1 cmt. n. 2. Second, the court must then assess whether the defendant knew or should have known of such unusual vulnerability. See id. (explaining that vulnerable victim adjustment “would not apply in a case in which the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile”). In other words, applying the vulnerable victim adjustment “requires a fact-based explanation of why advanced age or some other characteristic made one or more victims unusually vulnerable to the offense conduct, and why the defendant knew or should have known of this unusual vulnerability.” United States v. Vega-Iturrino, 565 F.3d 430, 434 (8th Cir.2009) (internal quotation marks omitted). At Llamas’s sentencing hearing, the district court found that at least two of the Kearns Call Center’s victims were unusually vulnerable. In particular, the court discussed the vulnerabilities of victims Lawrence Story and Tammy Hart," }, { "docid": "23446111", "title": "", "text": "S.Ct. at 2706. Bolling v. Sharpe, 347 U.S. at 499-500, 74 S.Ct. at 694-695. Because of the stigmatizing material in Buxton’s personnel file and the internal affairs report of the English incident, both a part of the public records pursuant to Fla.Stat. §§ 119.01 and 119.07, Buxton has been foreclosed from several employment opportunities. Buxton’s rights “to live and work where he will”; “to pursue any livelihood or avocation”; and “to engage in the common occupations of life” have been limited by placing his personnel file and the internal affairs report of the English incident into the public record. Buxton’s personnel file and the internal affairs report of the English incident have stigmatized Bux-ton in the eyes of potential law enforcement employers and in the minds of citizens reviewing this public information. The personnel file and the internal affairs report became public, pursuant to Fla.Stat. § 112.433, at the conclusion of the investigation which culminated with Buxton’s termination. Because the information in the file may be reviewed years after it is filed, its publication, for due process purposes, must be held to occur at the time of filing. Protection of the due process name clearing right cannot be effectively afforded any other way. We find Thomason v. McDaniel distinguishable. It did not address the issue before us. The Town of Sneads did not place stigmatizing information in Thomason’s personnel file. Thomason based his challenge on “newspaper coverage and town conversation” resulting from his complaints filed with “the Florida Commission on Ethics and the federal court.” Thomason v. McDaniel, at 1250. Accordingly, we reverse the judgment of the district court and hold that the presence of stigmatizing information placed into the public record by a state entity, pursuant to a state statute or otherwise, constitutes sufficient publication to implicate the liberty interest under the due process clause of the fourteenth amendment to the United States Constitution. V. What Process is Due “In cases where a liberty interest arising from reputational damage is implicated, the courts have followed a different procedural course. The hearings granted in such cases serve not to avert" }, { "docid": "23446114", "title": "", "text": "employee that the opportunity to clear his name exists upon request; pre-termination hearing is not a prerequisite to publication). The City of Plant City, Florida, has a grievance procedure that was apparently available to Buxton. His failure to utilize that procedure is of no moment at this time because we speak here of what is constitutionally required when the liberty interest is implicated, not what may or may not have been available to Buxton. We hold that a public employer is required to provide the opportunity for a post-termination name-clearing hearing when stigmatizing information is made part of the public records, or otherwise published. Notice of the right to such a hearing is required. We reverse the judgment of the district court and hold that the presence of stigmatizing information placed into the public record by a state entity, pursuant to a state statute or otherwise, constitutes sufficient publication to implicate the liberty interest under the due process clause of the fourteenth amendment to the United States Constitution. REVERSED AND REMANDED. . Fla.Stat. § 943.23 (1982), repealed by Laws 1984, c. 84-258 § 25, eff. Oct. 1, 1984, required an employing law enforcement agency to give notice of employment, termination, inactive status and reinstatement. . The release was not necessary to obtain Bux-ton’s personnel files. Fla.Stat. § 112.533 (1987) (substantively the same as Fla.Stat. § 112.533 (1983), in effect at the time of Buxton’s signed release), provides, in pertinent part: 112.533. Receipt and process of complaints (1) Every agency employing law enforcement officers or correctional officers shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such employing agency from any person. (2) Notwithstanding s. 119.14 [Open Government Sunset Review Act]: (a) A complaint filed against a law enforcement officer, ... with a law enforcement agency ... and all information obtained pursuant to the investigation by the agency of such complaint shall be confidential until the conclusion of the internal investigation or at such time that the investigation ceases to be active without a finding relating to probable cause. If the internal" }, { "docid": "11868504", "title": "", "text": "in the treatment of this claim. The record establishes that DHCS has not reported Guzman’s suspension to the HIPDB, and Guzman offers no evidence that DHCS is likely to change its policy in the future. Moreover, DHCS has been ordered to notify Guzman of any change in its policy, at which time Guzman could renew his motion for a preliminary injunction. Accordingly, based on the present record, we conclude that Guzman is not likely to succeed in proving that DHCS will publicly disclose the charges against him. 2 In the alternative, Guzman also asserts that he is under contractual obligations with several independent physicians’ associations to disclose his temporary suspension and that he is required to report the suspension to most of the hospitals at which he has staff privileges. Guzman’s argument that his own disclosure of the suspension deprives him of a protected liberty interest is foreclosed by our decision in Llamas. In that case, we rejected the claim of a terminated public employee that his liberty interest would be implicated if he responded truthfully regarding such termination on a civil service job application he planned to file in the future. 238 F.3d at 1125-30. We explained that “to allow the potentially stigmatized party to satisfy the publication prong by disseminating the details surrounding his termination would contradict the purposes of the publication requirement as made clear in ... Supreme Court precedent.” Id. at 1131 (citing Bishop v. Wood, 426 U.S. 341, 349, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976)). Guzman points to no authority for the proposition that the contracts that obligate him to self-report his suspension are sufficient to constitute public disclosure for purposes of a due process claim, and we are aware of none. Accordingly, we conclude that Guzman’s private obligations to report DHCS’s action do not satisfy the public disclosure prong of the Vanelli test. Having determined that Guzman is unable to demonstrate that the nature of the charges against him will be publically disclosed, we need not consider whether the charges have been made in connection with the alteration of a protected right or" }, { "docid": "1995797", "title": "", "text": "important, the “public disclosure” requirement set forth in Bishop and Gentile is not a self-defining concept. The purpose of the requirement is to limit a constitutional claim to those instances where the stigmatizing charges made in the course of discharge have been or are likely to be disseminated widely enough to damage the discharged employee’s standing in the community or foreclose future job opportunities. In determining the degree of dissemination that satisfies the “public disclosure” requirement, we must look to the potential effect of dissemination on the employee’s standing in the community and the foreclosure of job opportunities. As a result, what is sufficient to constitute “public disclosure” will vary with the circumstances of each case. In this case, we consider the effect on Brandt's future job opportunities since that is the harm he contends will result from dissemination of the reasons for his discharge. If Brandt is able to show that prospective employers are likely to gain access to his personnel file and decide not to hire him, then the presence of the charges in his file has a damaging effect on his future job opportunities. See Velger v. Cawley, 525 F.2d 334, 336-37 (2d Cir.1975), rev’d on other grounds sub nom. Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). Brandt need not wait until he actually loses some job opportunities because the presence of the charges in his personnel file coupled with a likelihood of harmful disclosure already place him “between the devil and the deep blue sea.” Velger v. Cawley, 525 F.2d at 336. In applying for jobs, if Brandt authorizes the release of his personnel file, the potential employer would find out about the allegations of sexual misconduct and probably not hire him. If he refuses to grant authorization, that, too, would hurt his chances for employment. Id. Thus, Brandt, unlike the employee in Bishop, would not be “as free as before to seek another” job. Courts of appeals for other circuits have similarly concluded that the public disclosure requirement has been satisfied where the stigmatizing charges are placed in the" }, { "docid": "23446094", "title": "", "text": "dismissed the claim. CONTENTIONS Buxton contends that the presence of stigmatizing information in a public employee’s personnel file in Florida is sufficient publication to implicate the liberty interest under the due process clause of the fourteenth amendment to the United States Constitution. Buxton argues that a Florida public employee’s liberty interest is vio lated when his employer places false and stigmatizing material in the public records without procedural due process. He asserts that the signing of a release does not relieve the public employer of its duty to provide due process of law. Buxton also argues that Florida’s requirement that terminations be reported to the FCJSTC does not relieve Plant City and' Chief Surrency of liability. Buxton further contends that Chief Surrency is not entitled to qualified immunity. Plant City and Chief Surrency contend that they have not deprived Buxton of his liberty interest without procedural due process because they did not publish any false and stigmatizing information. They argue that allowing access to public records in accordance with state law, allowing access to records upon receipt of a release, and providing a termination notice to the FCJSTC, do not satisfy the publication requirement for a liberty interest deprivation. They also contend that the alleged publication, if any, did not attend Buxton’s termination, but occurred three and one-half years after his termination. Chief Surren-cy contends that he is entitled to qualified immunity. ISSUES The parties present the following issues: (1) whether the presence of stigmatizing information in a public employee’s personnel file is sufficient publication to implicate the liberty interest under the due process clause; (2) whether allowing access to public records under state law and pursuant to a release signed by the subject of the records satisfies the publication requirement for a liberty interest deprivation; (3) whether allowing access to public records of an employee more than three years after his termination satisfies the requirement that publication of false, stigmatizing charges must attend an employee’s termination for a liberty interest deprivation; (4) whether providing a terminated employee with an opportunity to present a statement of the facts leading to" } ]

[ { "docid": "2402924", "title": "", "text": "court of appeals that has considered the question has held that a class action seeking only declaratory or injunctive relief does not bar subsequent individual suits for damages.” In re Jackson Lockdown/MCO Cases, 568 F.Supp. 869, 892 (E.D.Mich.1983); see, e.g., Fortner v. Thomas, 983 F.2d 1024, 1030-32 (11th Cir.1993) (“It is clear that a prisoner’s claim for monetary damages or other particularized relief is not barred if the class representative sought only declaratory and injunctive relief, even if the prisoner is a member of a pending class action.”); Wright, Miller, & Cooper, Federal Practice and Procedure: Jurisdiction § 4455 (1981 and 1995 Supp.) (collecting cases). In Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984), the Supreme Court held that the plaintiffs’ Title VII damages suit against their employer was not barred by the res judicata effect of a previous Title VII class action-even though the plaintiffs had been class members and witnesses in the previous action and thus could have brought their damages claim in that case. Finally, a leading treatise concludes that a member of a class generally should be free to bring an individual damages claim subsequent to a class action suit for declaratory or injunctive relief: The basic effort to limit class adjudication as close as possible to matters common to members of the class frequently requires that nonparticipating members of the class remain free to pursue individual actions that would be merged or barred by claim preclusion had a prior individual action been brought for the relief demanded in the class action. An individual who has suffered particular injury as a result of practices enjoined in a class action, for instance, should remain free to seek a damages remedy even though claim preclusion would defeat a second action had the first action been an individual suit for the same injunctive relief. 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4455 (1981). The district court’s dismissal of Hiser’s damages claim is contrary to this authority. Although these authorities do not specifically apply Alaska law, there" } ]

[ { "docid": "1802536", "title": "", "text": "On appeal, Schertz presents only his Section 1983 claim that the state and Waupaca defendants arrested and detained him without probable cause, in violation of the Fourth Amendment. He does not contest the sufficiency of the evidence to establish probable cause; rather, his theory is that the flaws in the murder investigation demonstrate the defendants’ bad faith and thereby negate the existence of probable cause. The defendants initially contend that the state court findings of probable cause collaterally estop Schertz from relitigating the issue in a Section 1983 action. A federal court applies state collateral estoppel law in determining whether a state court judicial determination precludes relit igation in a Section 1983 claim. Haring v. Prosise, 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983); Guenther v. Holmgreen, 738 F.2d 879, 883-84 (7th Cir.1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985). Under Wisconsin law, the collateral estoppel doctrine applies when an issue was actually litigated and decided and its resolution was necessary to the prior disposition. Reckner v. Reckner, 105 Wis.2d 425, 314 N.W.2d 159, 165 (App.1981). Even when a prior determination is entitled to preclusive effect under state law, relitigation is permitted if the earlier proceeding did not fairly or thoroughly address the matter. Guenther, 738 F.2d at 883. We agree with the district court that the preliminary hearing determination does not preclude relitigation of the probable cause issue. The preliminary hearing concerned the sufficiency of the evidence to establish probable cause. Since the instant claim is more accurately characterized as a challenge to the integrity of the evidence than to its sufficiency, identity of the issues is lacking. See Bailey v. Andrews, 811 F.2d 366, 370 (7th Cir.1987). Accordingly, we turn to analysis of the merits of Schertz’s claim. The elements of a Section 1983 claim are 1) the plaintiff held a constitutionally protected right; 2) he was deprived of that right in violation of the Constitution; 3) the defendants intentionally caused the deprivation; and 4) the defendants acted under color of state law. Donald v. Polk County, 836 F.2d 376, 379" }, { "docid": "5170324", "title": "", "text": "If liability is found at that stage, plaintiffs suggest that separate trials then be held to determine damages. This approach generally follows that described in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The Teamsters model differs from the typical disparate treatment claim in that, at the prima facie stage, plaintiffs need not offer evidence that each of them was discriminated against. Rather, plaintiffs must show that discrimination of the type alleged was the defendant’s “standard operating procedure ...” Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984). Such a showing, if made, creates “a presumption that the individual class members ha[ve] been discriminated against ...” Id. at 875,104 S.Ct. at 2799. The case then moves on to a second, “remedial” stage at which defendant bears the burden of demonstrating that the individual plaintiffs were not victims of the discriminatory practice. Teamsters, 431 U.S. at 362, 97 S.Ct. at 1868. The Teamsters approach thus differs from the traditional McDonnell Douglas analysis in that the burden of persuasion can shift from plaintiffs to defendant. For the reasons that follow, Xerox’s motion for summary judgment is granted on the claim that Xerox engaged in a pattern and practice of discrimination. There is an insufficient legal and factual basis to submit this theory of liability to the jury. Law of the Case: Lusardi Action First of all, a strong argument can be made that this issue has already been decided between these parties in the prior class action proceedings in Lusardi. All twenty-three plaintiffs were members of the Lusardi class action and, therefore, they are all bound by the judgment and all orders entered in that case. Cooper, 467 U.S. at 880,104 S.Ct. at 1801-02; Sperling v. Hoffmann-LaRoche, 145 F.R.D. 357, 364 (D.N.J.1992); see also Fed.R.Civ.P. 23(c)(2)((a). “ As most commonly defined, the doctrine [of law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ”" }, { "docid": "5493726", "title": "", "text": "appellants’ position. Under Minnesota law, “res judi-cata principles apply ‘not only as to every matter which was actually litigated, but also as to every matter which might have been litigated, therein.’ ” Thompson v. Am. Tobacco Co., Inc., 189 F.R.D. 544, 550 (D.Minn.1999) (quoting Youngstown Mines Corp. v. Prout, 266 Minn. 450, 124 N.W.2d 328, 340 (1963)). See also Sondel v. Northwest Airlines, Inc., 56 F.3d 934, 938 (8th Cir.1995) (“[A] judgment on the merits constitutes an absolute bar to a second suit for the same cause of action, and is conclusive between parties and privies, not only as to every other matter which was actually litigated, but also as to every matter which might have been litigated therein.”)(quoting Dorso Trailer v. Am. Body & Trailer, 482 N.W.2d 771, 774 (Minn.1992)) (internal citations and quotation marks omitted). Appellants’ reliance on language in Cameron v. Tomes, 990 F.2d 14, 17 (1st Cir.1993) is misplaced. There, quoting the Supreme Court in Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. at 880, 104 S.Ct. 2794, we stated that “a class action judgment ... binds the class members as to matters actually litigated but does not resolve any claim based on individual circumstances that was not addressed in the class action.” Cameron 990 F.2d at 17. In Cameron, however, the prior class action challenged general conditions at a state treatment center for the sexually dangerous, while Cameron’s later suit rested primarily on [his] claims that his unusual situation requires special accommodations; specifically, that his physical disability affects his need for outside medical visits, freer movement within the Treatment Center, and separate bunking arrangements adapted to his handicap, and that his mental condition ... makes ordinary physical searches, disciplinary arrangements and other constraints unsuitable, indeed psychologically dangerous, for him. Id. at 18. Cameron’s quoted language is clearly distinguishable from the present case, in which appellants point to no unique circumstances applicable to their case which was outside the scope of the matters actually litigated, or that could have been litigated, in O’Hara. Appellants place their reliance on allegedly distinct causes of action, not different" }, { "docid": "15203394", "title": "", "text": "embraced by Langton—Bruder v. Johnston—was a class action suit concerning the right to treatment for all persons confined at the Treatment Center as of 1987. Cameron, says the state, was a member of the class and the state prevailed in that case on the ground that treatment was adequately provided. We agree with the district court that the state has made no showing that Cameron’s claim is barred by res judicata. Cases on res judicata, ample in many areas, are fairly sparse where preclusion of distinctive individual claims is urged baséd upon an earlier class action judgment. But in Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 880, 104 S.Ct. 2794, 2801-02, 81 L.Ed.2d 718 (1984), the Supreme Court confirmed what common sense would suggest: a class action judgment—there, in a discrimination case— binds the class members as to matters actually litigated but does not resolve any claim based on individual circumstances that was not addressed in the-class action. Id. at 880-82, 104 S.Ct. at 2801-02. Under Cooper, we think that res judica-ta plainly does not apply in this instance. The several law suits and years of proceedings embraced by Langton require pages to describe, but the suits were concerned with fairly general issues (e.g., physical plant, sequestration, equality of treatment) and with specific claims of individuals other than Cameron. The closest that that litigation came to this case was (1) endorsement of a general requirement of treatment set forth in state regulations, (2) rejection of a charge that the authorized absence program was underutilized, and (3) rejection of a general attack on the “double bunking” requirement. These claims dealt with the general condition of inhabitants of the Treatment Center. If Langton has anything else in common with this case, the state has not mentioned it. This case, by contrast, rests primarily on Cameron’s claims that his unusual situation requires special accommodations: specifically, that his physical disability affects his need for outside medical visits, freer movement within the Treatment Center, and separate bunking arrangements adapted to his handicap, and that his mental condition (what lay people would probably" }, { "docid": "14996251", "title": "", "text": "747 F.2d. at 1318-19. . Appellants’ reply brief states that many of the class members were not even born before the land was withdrawn. Appellants’ Reply Br. at 18. . 467 U.S. 867, 880, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). See also Cameron v. Tomes, 990 F.2d 14, 17, 18 (1st Cir.1993) (in rejecting argument that individual claim was barred by res judicata effect of class action, court stated that, \"a class action judgment ... binds the class members as to matters actually litigated but does not resolve any claim based on individual circumstances that was not addressed in the class action.... [Cjlass action institutional litigation often addresses general circumstances, not the distinctive plight of someone claiming special needs or status”). . In view of our decision on the merits, we need not separately address the res judicata argument as it relates to the claim of Adeline Jim, as the descendent of Shields class member George Jim, Sr. . Hjelvik v. Babbitt, 198 F.3d at 1074. . In re Fegert, Inc., 887 F.2d 955, 957 (9th Cir.1989). . See, e.g., In re Sarah F. Lindgren (on reconsideration), 54 IBLA 181, 182 (1981); In re Andrew Petla, 43 IBLA 186, 192 (1979). . In re Petla, 43 IBLA at 192-93. . In re Lindgren, 54 IBLA at 182. . In re Bennett, 92 IBLA 174, 177 (1986). . Bicycle Trails of Marin v. Babbitt, 82 F.3d 1445, 1452 (9th Cir.1996) (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). . Id. . Id. at 1452, 1454. . 43 U.S.C. § 270-3 (1970 ed.). The Act does not define \"substantial use and occupancy-'' . 43 C.F.R. § 2561.0-5(a). . Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). . Id. . Id. (quotation marks and citation omitted). . See 30 Fed.Reg. 3710 (Mar. 20, 1965). . 71 Dept. Int. Rep. 340, 342 (Sept. 21, 1964). . Id. . In re Bouwens, 46 IBLA 366, 368 (1980). See also In re Bennett, 92" }, { "docid": "18085778", "title": "", "text": "back pay. Assuming that a class is certified and that the Plaintiff class is successful on the issue of liability, numerous individual questions relating to damages and relief will remain. In Cooper v. Federal Reserve Bank, 467 U.S. 867, 876, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984), the Supreme Court observed that in an employment discrimination class action, “While a finding of a pattern or practice of discrimination itself justifies an award of prospective relief to the class, additional proceedings are ordinarily necessary to determine the scope of individual relief for the members of the class.” Such additional proceedings often involve numerous individual factual determinations, and raise concerns about the manageability of the litigation. In such situations, a few courts have avoided potential manageability problems by denying class certification or denying back pay relief. Here, whether or not the liability issues are litigated on a class-wide basis, the remedial issues will require individualized determinations, and the benefits of class certification over joinder are less apparent. Despite these concerns, there is no requirement for Rule 23(b)(2) class actions that common questions predominate over individual questions, or that the class action be superior to other available methods for the fair and efficient adjudication of the controversy. Such predominance and superiority tests apply only to Rule 23(b)(3) class actions. Penland, v. Warren County Jail, 759 F.2d 524, 531 (6th Cir.1985) (en banc); Fed.R.Civ.P. 23(b) advisory committee’s note; Herbert B. Newberg, Newberg on Class Actions § 4.11 (1985 & 1991 Supp.). Thus, assuming the other requirements of Rule 23 meet with the Court’s approval, neither the existence of individual questions, nor the Court’s view that a class action may not be superior to other methods of relief, will defeat class certification. C. Typicality The “typicality” requirement of Rule 23(a)(3) requires that the claims or defenses of the representative parties be typical of the claims or defenses of the class. “Rule 23(a)(3) does not require that the factual background of the named plaintiff’s case be identical with that of other members of the class, but that the disputed issue occupy essentially the same degree" }, { "docid": "22112586", "title": "", "text": "judgment under advisement, plaintiffs’ claims had been reduced essentially to those we address in this opinion. Plaintiffs’ pattern or practice claim, which relates to CCBCC’s method of hiring supervisors, had been dismissed because, in the court’s view, a pattern or practice claim can only be maintained as a class action and plaintiffs had not sought class certification. What remained of the pattern or practice claim, therefore, were the individual claims: each plaintiff contended that CCBCC had refused to promote him to a vacant supervisory position because of his race. The court granted CCBCC summary judgment on these claims as time-barred under both Title VII and § 1981. The court then addressed plaintiffs’ light work and retaliation claims, brought under Title VII and § 1981, and held that they were either time-barred or, like plaintiffs’ individual hostile work environment claims, failed for lack of proof. We now turn to the issues this appeal presents. We begin with the question of whether the district court erred in ruling that plaintiffs, proceeding individually or collectively rather than as class action representatives, could not prosecute a pattern or practice claim. II. A. Section 707(a) of the CM Rights Act of 1964, 42 U.S.C. § 2000e-6(a), entitles the Government to bring a pattern or practice claim on behalf of a class of similarly situated employees for declaratory and injunctive relief against an ongoing act of intentional discrimination in violation of Title VII. A pattern or practice claim for such relief may also be brought under Title VII as a class action, pursuant to Federal Rule of Civil Procedure 23(b)(2), by one or more of the similarly situated employees. See Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 n. 9, 104 S.Ct. 2794, 2800, 81 L.Ed.2d 718 (1984) (“[I]t is plain that the elements of a prima facie pattern-or-practice case are the same in a private class action [as when the Government brings the claim].”). In addition to praying for declaratory and injunctive relief, the complaint may also seek back pay on behalf of individual class members who have been injured by the" }, { "docid": "10478285", "title": "", "text": "that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII], and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights [described in Title VII], the Attorney General may bring a civil action ... requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described. 42 U.S.C. § 2000e-6(a). Although this section does not explicitly authorize private litigants to bring pattern-or-practice claims, courts, including the Supreme Court, have implicitly approved of pattern-or-practice claims being brought by private litigants in the form of a class action. See, e.g., Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 n. 9, 104 S.Ct. 2794, 2799 n. 9, 81 L.Ed.2d 718 (1984) (stating that “Although Teamsters [v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) ] involved an action litigated on the merits by the Government as plaintiff ..., it is plain that the elements of a prima facie pattern-or-practice case are the same in a private class action”). Furthermore, although the ADEA does not explicitly provide for pattern-or-practice claims, courts have applied the law developed in the context of Title VII pattern- or-practice claims to claims of age discrimination. See, e.g., King v. General Electric Company, 960 F.2d 617 (7th Cir.1992); EEOC v. Western Electric Company, Incorporated, 713 F.2d 1011 (4th Cir.1983); EEOC v. Sandia Corporation, 639 F.2d 600 (10th Cir.1980). Therefore, opinions discussing the meaning of “pattern or practice” in the context of Title VII are equally applicable to actions brought under the ADEA. In an action alleging that an employer engaged in a pattern or practice of age discrimination, the ultimate factual issues are whether there was a pattern or practice of disparate treatment and, if so, whether the differences in treatment were due" }, { "docid": "18085777", "title": "", "text": "relevant work force ...” Ross v. Nikko Secur. Co. Int’l, Inc., 133 F.R.D. 96, 97 (S.D.N.Y.1990). In addition, Plaintiffs’ statistics indicate that employees holding Level II positions and Administrative Positions are disproportionately white in relation to the pool of black Level I applicants. Defendants contest neither the validity of these statistics nor the statistical breakdowns by race and position, nor do they offer contrary statistics. Furthermore, the class is narrowly defined to include only black Level I employees of DCE, and Plaintiffs do not move for certification of a class with claims unrelated to those addressed by their anecdotal and statistical evidence. Accordingly, the Falcon “gap” is absent here, and Plaintiffs have shown the existence of commonality in the proposed class. Despite this showing, concerns remain as to whether prosecution of this action as a class action is preferable to joinder of individual claims. Plaintiffs seek not only declaratory and injunctive relief, but also an order requiring DCE to promote Bishop and Syphax to the next available Level II or Administrative Positions, and damages, including back pay. Assuming that a class is certified and that the Plaintiff class is successful on the issue of liability, numerous individual questions relating to damages and relief will remain. In Cooper v. Federal Reserve Bank, 467 U.S. 867, 876, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984), the Supreme Court observed that in an employment discrimination class action, “While a finding of a pattern or practice of discrimination itself justifies an award of prospective relief to the class, additional proceedings are ordinarily necessary to determine the scope of individual relief for the members of the class.” Such additional proceedings often involve numerous individual factual determinations, and raise concerns about the manageability of the litigation. In such situations, a few courts have avoided potential manageability problems by denying class certification or denying back pay relief. Here, whether or not the liability issues are litigated on a class-wide basis, the remedial issues will require individualized determinations, and the benefits of class certification over joinder are less apparent. Despite these concerns, there is no requirement for Rule" }, { "docid": "8562939", "title": "", "text": "No. 1. To the extent Plaintiffs are anticipating a future amendment that more specifically addresses and regulates snowmobile use, their challenge is not ripe. Motorboating and Amendment No. 5 were not at issue in Stupak-Thrall I. Accordingly, Plaintiffs have not yet had an opportunity to challenge the issuance of Amendment No. 5. Claim preclusion does not prevent Plaintiffs from challenging Amendment No. 5 in this action. Defendants contend, nevertheless, that issue preclusion bars Plaintiffs from relitigating those issues that were necessarily decided in Stupak-Thrall I. Under the doctrine of issue preclusion a party may be precluded from re-litigating issues which were decided in previous litigation if the following elements are present: 1. The issue precluded must be the same one involved in the prior proceeding; 2. The issue must actually have been litigated in the prior proceeding; 3. Determination of the issue must have been a critical and necessary part of the decision in the prior proceedings; and 4. The prior forum must have provided the party against whom estoppel is asserted a full and fair opportunity to litigate the issue. Central Transport, Inc. v. Four Phase Systems, Inc., 936 F.2d 256, 259 (6th Cir.1991). Defendants contend that the issue of whether the phrase “subject to valid existing rights” baring all management decisions which interfere with the exercise of existing riparian rights was fully litigated and resolved against Plaintiffs in. the prior proceeding. The Court does not agree. The prior action addressed sailboats and houseboats, activities that Plaintiffs had not engaged in. Central to the district court’s ruling in Stu-pak-Thrall I was the determination that the restrictions in Amendment No. 1 were reasonable given the minimal impact on Plaintiffs’ riparian uses of Crooked Lake. Stupak-Thrall I, 843 F.Supp. at 334. Amendment No. 5 differs significantly from Amendment No. 1. Amendment No. 5, with its absolute ban on gas motors and strict limitations on electric motors, would impose more than a slight restriction on Plaintiffs’ current use of the lake. Amendment No. 5 does not just affect a hypothetical use of the lake by Plaintiffs. It affects Plaintiffs’ long standing pre-existing" }, { "docid": "15203393", "title": "", "text": "to a restrictive internal movement policy, to an intrusive search procedure previously used and so-called “oral cavity searches,” and to the “current disciplinary system” of the Treatment Center. Id. at 1526-27. Finally, without any qualification as to professional judgment, the court ordered that Cameron be allowed medical treatment at Veterans Administration facilities for specific medical conditions, that he be allowed housing in the maximum privilege unit of the Treatment Center without consenting to share a room, and that a handicapped accessible room be immediately made available to him. 783 F.Supp. at 1526. This last direction, as well as several of the others, was related to physical disabilities suffered by Cameron, including the amputation of a leg due to infection while Cameron was in the care of the state. II. DISCUSSION Res Judicata. The state’s threshold objection to the suit is that Cameron’s claims are encompassed by prior litigation and are therefore barred as res judicata. Emphasizing the “claim preclusion” branch of res judicata, the state’s brief says that one of the consolidated district court cases embraced by Langton—Bruder v. Johnston—was a class action suit concerning the right to treatment for all persons confined at the Treatment Center as of 1987. Cameron, says the state, was a member of the class and the state prevailed in that case on the ground that treatment was adequately provided. We agree with the district court that the state has made no showing that Cameron’s claim is barred by res judicata. Cases on res judicata, ample in many areas, are fairly sparse where preclusion of distinctive individual claims is urged baséd upon an earlier class action judgment. But in Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 880, 104 S.Ct. 2794, 2801-02, 81 L.Ed.2d 718 (1984), the Supreme Court confirmed what common sense would suggest: a class action judgment—there, in a discrimination case— binds the class members as to matters actually litigated but does not resolve any claim based on individual circumstances that was not addressed in the-class action. Id. at 880-82, 104 S.Ct. at 2801-02. Under Cooper, we think that res judica-ta" }, { "docid": "23392575", "title": "", "text": "look to all the evidence submitted to determine whether defendant met its burden of producing a legitimate reason for the employment action. See In re Royale Airlines, Inc., 98 F.3d 852, 856 (5th Cir.1996) (judgment may be affirmed on any grounds in the record). The named plaintiffs arguably made out a prima facie case on their individual claims, since the complaint and later-filed affidavits allege the required elements for disparate treatment: that the named plaintiffs are members of a protected class and that they were denied promotions. However, all of the promotion denials challenged by the class, including those of the named plaintiffs, arose from the Merit Promotion Plan at Kelly. The promotion plan itself, including the PPRS algorithm which the district court determined was not probative of any claims of discrimination, is the “reason” for the denial of promotions in issue. Plaintiffs would have to show, therefore, either that there is a genuine issue as to whether the promotion plan indicates intentional discrimi nation or that the promotions denied them were somehow capable of being isolated from the promotion system and that purposeful discrimination was behind those employment actions. Nothing in the record adequately alleges or shows purpose on the part of defendant. A complete failure of proof as to one element requires summary judgment against the entirety of the claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Because plaintiffs have not shown any evidence going to purpose, any individual claims based on disparate treatment fail to withstand summary judgment. We note that the failure of proof on the class claim does not bar all individual class members from bringing their own suits, provided that they do not base their claims solely on issues already adjudicated in this action and that they can show individualized proof of discrimination. See Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 880, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). III. Conclusion This has been protracted and difficult litigation for both sides. We fully appreciate the importance of this case, both in terms of" }, { "docid": "22112587", "title": "", "text": "class action representatives, could not prosecute a pattern or practice claim. II. A. Section 707(a) of the CM Rights Act of 1964, 42 U.S.C. § 2000e-6(a), entitles the Government to bring a pattern or practice claim on behalf of a class of similarly situated employees for declaratory and injunctive relief against an ongoing act of intentional discrimination in violation of Title VII. A pattern or practice claim for such relief may also be brought under Title VII as a class action, pursuant to Federal Rule of Civil Procedure 23(b)(2), by one or more of the similarly situated employees. See Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 n. 9, 104 S.Ct. 2794, 2800, 81 L.Ed.2d 718 (1984) (“[I]t is plain that the elements of a prima facie pattern-or-practice case are the same in a private class action [as when the Government brings the claim].”). In addition to praying for declaratory and injunctive relief, the complaint may also seek back pay on behalf of individual class members who have been injured by the employer’s discriminatory practice. 42 U.S.C. § 2000e-5(g)(1). We have referred to such complaint as presenting a “hybrid Rule 23(b)(2) class action.” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1554 (11th Cir.1986). The court must address two issues before proceeding to adjudicate as a class action a pattern or practice claim. First, the court must determine whether the named plaintiff has standing to prosecute the claim on behalf of similarly-situated employees. See Murray v. U.S. Bank Trust Nat’l Ass’n, 365 F.3d 1284, 1288 n. 7 (11th Cir.2004). Only someone who claims he has been, or is likely to be, harmed by the ongoing discriminatory practice has an adequate stake in the litigation to satisfy the “case or controversy” requirement of Article III. See Flast v. Cohen, 392 U.S. 83, 99-101, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). If the named plaintiff lacks standing to sue, he cannot prosecute the pattern or practice claim, and unless an employee who has been, or is likely to be, harmed by the discriminatory practice is substituted" }, { "docid": "9630291", "title": "", "text": "restrictive. Rule 15(b) of the Federal Rules of Civil Procedure states, in pertinent part: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. As the rule indicates, and as will be made clear below, had a strong objection to Jund’s failure to amend the complaint been raised, Jund could have amended his complaint because the claims arise out of the scheme that was the focus of the pleadings, the claims are directly related to the earlier violation, and there was no undue prejudice to the defendants. It must be recognized that the 1985 trial did not arise out of Jund’s claims alone; it was a class action. The trial’s purpose was to ascertain the substantive liability of the Committees and the existence of the coercive practice and policy of the defendants, not the particular damages of individual plaintiffs. See Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984). “While a finding of a pattern or practice of discrimination itself justifies an award of prospective relief to the class, additional proceedings are ordinarily required to determine the scope of individual relief for the members of the class.”" }, { "docid": "8562938", "title": "", "text": "973 F.2d 474, 480 (6th Cir.1992) (citations omitted), cert. denied, 506 U.S. 1079, 113 S.Ct. 1046, 122 L.Ed.2d 355 (1993). In this action Plaintiffs challenge Defendants’ authority to implement portions of Amendment No. 1 and all of Amendment No. 5 which restrict Plaintiffs’ use of the entire surface of Crooked Lake for motorboating and snowmobiling. Amendment No. 1 clearly restricts the use of snowmobiles within the wilderness area, by making any non-emergency use of snowmobiles subject to authorization by the Forest Supervisor. Amendment No. 1 also states that specific management direction pertaining to motorized use on Crooked Lake will be listed under a future amendment to the Ottawa National Forest Land and Resource Management Plan. The Court agrees with Defendants that to the extent Plaintiffs are challenging that portion of Amendment No. 1 that restricts snowmobiling on Crooked Lake, they are barred by the doctrine of claim preclusion because they should have raised this argument when they challenged the other lake restrictions contained in Amendment No. 1. This Court will not reopen argument on Amendment No. 1. To the extent Plaintiffs are anticipating a future amendment that more specifically addresses and regulates snowmobile use, their challenge is not ripe. Motorboating and Amendment No. 5 were not at issue in Stupak-Thrall I. Accordingly, Plaintiffs have not yet had an opportunity to challenge the issuance of Amendment No. 5. Claim preclusion does not prevent Plaintiffs from challenging Amendment No. 5 in this action. Defendants contend, nevertheless, that issue preclusion bars Plaintiffs from relitigating those issues that were necessarily decided in Stupak-Thrall I. Under the doctrine of issue preclusion a party may be precluded from re-litigating issues which were decided in previous litigation if the following elements are present: 1. The issue precluded must be the same one involved in the prior proceeding; 2. The issue must actually have been litigated in the prior proceeding; 3. Determination of the issue must have been a critical and necessary part of the decision in the prior proceedings; and 4. The prior forum must have provided the party against whom estoppel is asserted a full and" }, { "docid": "15908556", "title": "", "text": "seeking solely equitable relief. See Norris v. Slothouber, 718 F.2d 1116, 1117 (D.C.Cir.1983). That said, a plaintiff in a later suit might be barred by collateral estoppel or issue preclusion from contesting an issue of fact or law that is decided in the defendant’s favor. See Cooper v. Fed. Reserve Bank, 467 U.S. 867, 874, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984) (“A judgment in favor of either side [in a class action] is conclusive in a subsequent action between them on any issue actually litigated and determined, if its determination was essential to that judgment.”) Here, though, there is no real conflict of interest, since the scope of the current litigation is limited to a systemic challenge, and the District has not identified any issues that if decided in its favor would preclude an individual Olmstead action for damages. The District also argues that the individual circumstances of several plaintiffs (Collins, Gray, and Rivers) render them inadequate to represent the class, focusing on statements that suggest that they have limited legal knowledge about the facts or legal theories of the case or a limited understanding about class action generally and the role of a “class representative.” (CC Opp. 32-33.) However, Rule 23(a)(4) does not require either that the proposed class representatives have legal knowledge or a complete understanding of the representative’s role in class litigation. See, e.g., New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 313 (3d Cir. 2007) (“A class representative need only possess a minimal degree of knowledge necessary to meet the adequacy standard.” (internal quotations omitted)); Newberg on Class Actions § 3:67 (“lack of knowledge about the facts or legal theories of a particular case will usually not bar a finding that the proposed representative can adequately represent the class”); id. (“Adequacy is satisfied, though, if the plaintiff has some rudimentary knowledge of her role as a class representative and is committed to serving in that role in the litigation”). Moreover, given the circumstances of the named plaintiffs, it is unrealistic to expect that they understand the legal intricacies of class actions, which" }, { "docid": "22336882", "title": "", "text": "subsequent jury, not whether the two fact-finders will merely have to consider similar evidence in deciding distinct issues. See Alabama v. Blue Bird Body Co., 573 F.2d 309, 318-19 (5th Cir.1978). . Recall that the plaintiffs identified the following employment practices as resulting in unlawful race discrimination: (1) failure to post or announce job vacancies; (2) use of an informal word-of-mouth announcement process for filling job vacancies; (3) use of racially biased tests to evaluate candidates for hire or promotion; and (4) use of a subjective decision-making process by a predominantly white supervisory staff in reviewing applicants for hire and employees for promotion. . The plaintiffs have argued that Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984), stands for the proposition that there is no overlap of factual issues among their claims. We disagree. In Cooper, the Supreme Court held that an adverse judgment at the liability stage of a pattern or practice class action does not automatically preclude — by virtue of res judicata or collateral estoppel — individual discrimination lawsuits by class members. See id. at 880, 104 S.Ct. 2794. The Court reasoned that \"the existence of a valid individual claim does not necessarily warrant the conclusion that the individual plaintiff may successfully maintain a class action [while] [i]t is equally clear that a class plaintiff’s attempt to prove the existence of a companywide policy ... may fail even though discrimination against one or two individuals has been proved.” Id. at 877-78, 104 S.Ct. 2794. At the first or liability stage of a pattern or practice case, the plaintiffs seek to prove that discrimination was the defendant’s standard operating procedure. See id. at 876, 104 S.Ct. 2794. The focus will be not on individual hiring decisions, but on the existence of a pattern or practice of discriminatory decision-making. Id. In other words, the liability stage of a pattern or practice class action does not necessarily implicate the same factual issues as an individual discrimination lawsuit brought separately by a class member. See id. at 881, 104 S.Ct. 2794. However, the same" }, { "docid": "5493721", "title": "", "text": "rules are applicable to class actions. See Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 379, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996) (“There is of course no dispute that under elementary principles of prior adjudication a judgment in a properly entertained class action is binding on class members in any subsequent litigation.”) (quoting Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984))(quotation marks omitted). The first prong of this rule, whether there is extant a final judgment on the merits in the first suit, is clearly satisfied considering the final judgment of the Minnesota court in O’Hara. The issue in the second prong, the identity of the parties, is intermingled with appellants’ due process claims, wherein appellants allege that they failed to receive actual notice of the O’Hara suit and settlement, and thus are not bound by the subsequent judgment. Although it is a fundamental requirement of due process that interested parties be apprised of the pendency of actions in which they have an interest, and be afforded an opportunity to present their allegations, such requirements can be met in appropriate cases by methods of notification other than actual personal notice. Cf. Mullane v. Cent. Hanover Tr. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Lombard v. United States, 356 F.3d 151, 156 (1st Cir.2004). “Individual notice of class proceedings is not meant to guarantee that every member entitled to individual notice receives such notice,” but “it is the court’s duty to ensure that the notice ordered is reasonably calculated to reach the absent class members.” Hallman v. Pa. Life Ins. Co., 536 F.Supp. 745, 748-49 (N.D.Ala.1982) (quotation marks and citation omitted); see also In re Viatron Computer Sys. Corp. Litig., 614 F.2d 11, 13 (1st Cir.1980); Key v. Gillette Co., 90 F.R.D. 606, 612 (D.Mass.1981); cf. Lombard, at 155. After such appropriate notice is given, if the absent class members fail to opt out of the class action, such members will be bound by the court’s actions, including settlement and judgment, even though those" }, { "docid": "12852120", "title": "", "text": "pension service, as a result, in whole or in part, of Continental’s alleged Capping Program____ Plaintiffs move for partial summary judgment as to liability on their ERISA claims. II. DISCUSSION Gavalik v. Continental Can Co., 812 F.2d 834 (3d Cir.1987) directs this court’s determination of plaintiffs’ motion. First, Gavalik, as Third Circuit precedent binding on this district, sets forth the legal requirements for establishing liability on a § 510 class action claim. Second, Gavalik, as an action involving claims “virtually identical” to those in this action, see id. at 847 n. 27, precludes Continental from relitigating factual issues that establish its liability under § 510. A. Gavalik as legal precedent—Class action liability under § 510 1. Structure of § 510 class action litigation Gavalik applies to § 510 class action litigation the methodology developed by the Supreme Court for structuring Title VII employment discrimination class actions. This methodology contemplates a two-phase trial: during the initial “liability” phase, the focus is on whether defendant has engaged in a pattern or practice of discrimination justifying an award of prospective injunctive relief to the class; during the second “remedial” phase, the focus is on the consequences of this discrimination and the entitlement to relief of individual class members. See Cooper v. Federal Reserve Bank, 467 U.S. 867, 875-76, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984); International Bhd. of Teamsters v. United States, 431 U.S. 324, 360-362, 97 S.Ct. 1843, 1867-68, 52 L.Ed.2d 396 (1977). Plaintiffs seek summary judgment on the liability phase of their § 510 claim. 2. Elements of liability under § 510 Section 510 provides in relevant part: It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a partici pant or beneficiary ... of an employee benefit plan ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan. This court understands Gavalik to require class action plaintiffs to prove three elements in order to prevail at the liability stage of a § 510 action—employer conduct, discriminatory intent, and causation. Employer conduct." }, { "docid": "16108824", "title": "", "text": "certified in the Florida Action and that their fifth amendment claims are barred by the doctrine of collateral estoppel. We disagree. “[UJnder elementary principles of prior adjudication a judgment in a properly entertained class action is binding on class members in any subsequent litigation. Basic principles of res judicata (merger and bar or claim preclusion) and collateral es-toppel (issue preclusion) apply_ A judgment in favor of either [the plaintiff class or the defendant] is conclusive in a subsequent action between them on any issue actually litigated and determined, if its determination was essential to that judgment.” Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 874, 104 S.Ct. 2794, 2798, 81 L.Ed.2d 718 (1984) (citations omitted). For the reasons discussed hereinbelow, we conclude that the class defined in the Florida Action was overly broad, that the issues presented in the present suit were not actually litigated or determined in the Florida Action and thus we decline to apply the doctrine of collateral estoppel to the “screened in” plaintiffs’ fifth amendment claims. It cannot be said that the “screened in” plaintiffs’ fifth amendment claims were fairly and adequately represented within the meaning of Fed.R.Civ.P. 23(a)(4) in the Florida Action. The Florida Action plaintiffs alleged that the Florida Action defendants’ practices of forcibly returning interdicted persons to Haiti violated the fifth amendment to the United States Constitution in that the defendants in the Florida Action did not comply with the guidelines promulgated by the INS pursuant to the Executive Order. In moving for class certification, the plaintiffs in the Florida Action presented fourteen “screened out” persons as representative members of the class. However, when the class was certified in the Florida Action, it was the INS’ announced policy to bring “screened in” Haitians to the United States so that they could file an application for asylum. In fact, since the interviews conducted by United States officials already had determined that numbers of Haitians had a “credible” fear of persecution, resulting in their being “screened in,” it is not at all likely that the “screened in” Haitians would have alleged that the" } ]

[ { "docid": "22655609", "title": "", "text": "a new lawyer for the defendant.) If the brief explains the nature of the case and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous. We shall confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues that he chose to discuss is responsible and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we shall have enough basis for confidence in the lawyer’s competence to forgo scrutiny of the rest of the record. The resources of the courts of appeals are limited and the time of staff attorneys and law clerks that is devoted to searching haystacks for needles is unavailable for more promising research. Id. at 553. The Third Circuit follows the Seventh Circuit approach. See United States v. Youla, 241 F.3d 296 (3d Cir.2001) and United States v. Ripoll, 123 Fed.Appx. 479 (3d Cir.2005) (unpublished). We agree with the Seventh Circuit’s analysis and adopt its approach to Anders cases. The holding in this case, along with the holding in our companion case, United States v. Garland, No. 09-50317, 632 F.3d 877 (5th Cir.Tex.), setting forth the minimum standards for Anders briefs, will fully satisfy defendants’ Sixth Amendment right of counsel on direct appeal. Applying this process to the facts of Flores’ guilty plea and sentence, and based on our review of counsel’s brief and the relevant portions of the record referenced therein, we accept counsel’s assessment that Flores has no nonfrivolous issues to raise on appeal. III. Accordingly, counsel’s motion to withdraw is granted and the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. . We have incorporated a number of changes in the opinion suggested" } ]

[ { "docid": "22703688", "title": "", "text": "no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit Rule 109.2(a). This rule, like the Anders case itself, provides only a general explanation of the contours of the court’s and counsel’s obligations in the Anders situation. However, two opinions of the Court of Appeals for the Seventh Circuit, United States v. Tabb, 125 F.3d 583 (7th Cir.1997), and United States v. Wagner, 103 F.3d 551 (7th Cir.1996), have shed new light on the interpretation of Anders. These opinions fill in gaps left by Anders and its early progeny with respect to two critical questions: (1) the responsibilities of counsel in submitting an Anders brief (Tabb); and (2) the duties of the courts of appeals" }, { "docid": "22677619", "title": "", "text": "PREGERSON, District Judge: Appointed counsel for Francisco Aguilar-Muniz has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there are no meritorious issues for appeal and requesting leave to withdraw as counsel. Although notified of his right to respond to counsel’s motion to withdraw, appellant has failed to respond. After consideration of the issues identified by counsel, and after an independent review of the record, we grant the motion to withdraw and affirm the decision below. On November 9, 1995, Francisco Aguilar-Muniz (“Aguilar-Muniz”) was indicted along with four co-defendants for conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). On June 4, 1996, Aguilar-Muniz waived indictment and pleaded guilty to a superseding information charging conspiracy to manufacture methamphetamine. On June 27, 1996, the government moved to be relieved of its obligations under Aguilar-Muniz’s plea agreement on the grounds that Aguilar-Muniz had not testified truthfully at the trial of co-defendant Jose Luis Buenrostro. On August 15, 1996, Aguilar-Muniz waived his right to a hearing on the government’s motion to withdraw the previous plea agreement, and pleaded guilty to a new superseding indictment charging possession of pseu-doephedrine with knowledge that it would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(2) and use of a telephone to facilitate conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 843(b). Aguilar-Muniz was sentenced on October 30, 1996 to the statutory maximum of fourteen years imprisonment. Aguilar-Muniz timely noticed this appeal on November 5, 1996. Attorney Kent Verne Anderson was appointed counsel on November 6, 1996. Anderson now moves to withdraw, and files a brief pursuant to Anders, asserting that there are no non-frivolous issues for appeal. As required by Anders, counsel has filed a brief identifying possible issues for appeal. As part of the plea agreement, Aguilar-Muniz had waived the right to appeal his conviction. Counsel has identified two possible issues regarding the waiver of appeal: (1) Did the district court comply with Rule 11 of the Federal Rules of Criminal Procedure in taking the" }, { "docid": "22694768", "title": "", "text": "PER CURIAM. Several months ago, in United States v. Wagner, 103 F.3d 551 (7th Cir.1996), we clarified the procedure we follow when determining whether to accept a motion by a criminal, defendant’s lawyer to withdraw from representing a defendant on appeal because no nonfrivolous issues can be advanced. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our starting point is the Anders brief itself, which we review to see if it is adequate on its face. If it explains the nature of the case and intelligently discusses the issues that a case of the sort might be expected to involve, we will not conduct an independent review of the record to determine whether a more ingenious lawyer might have found additional issues that may not be frivolous. Instead, we confine our scrutiny of the record to the portions that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues she chose to discuss is reasonable and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we will have a sufficient basis for confidence in the lawyer’s competence to forego scrutiny of the rest of the record. Then, if we agree with the brief, we will grant the attorney’s request to withdraw as counsel and dismiss the appeal as meritless. We took this approach because a lawyer submitting an Anders brief is, in essence, offering an expert opinion that the appeal is devoid of merit. If the brief, on its face, is adequate, we think we can comfortably rely on the professional opinion it offers. We are also influenced by a defendant’s response, if any, to the Anders brief which must be served on the defendant. 7th Cir. R. 51(b). And although we do not attach conclusive weight to a defendant’s failure to respond to an Anders brief, it may, in fact, be an acknowledgment that the appeal should be abandoned as hopeless. Wagner at 552. The two eases before" }, { "docid": "22703687", "title": "", "text": "OPINION OF THE COURT BECKER, Chief Judge. I. Donald Wayne Marvin pled guilty to conspiracy, robbery, and the use of a firearm during a crime of violence. Marvin wanted to appeal aspects of his sentencing, but Marvin’s counsel filed an Anders motion, requesting to withdraw from representing him and expressing his belief that there were no nonfrivolous arguments for appeal. After reviewing the brief, we conclude that it is inadequate, and deny counsel’s motion. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court explained the general duties of a lawyer representing an indigent criminal defendant on appeal when the lawyer seeks leave to withdraw from continued representation on the grounds that there are no nonfrivolous issues to appeal. An-ders struck down a process that allowed courts of appeals to accept a mere assertion by counsel that he or she found the appeal to be “without merit.” Id. at 743, 87 S.Ct. 1396. The Court suggested, however, that if, after a “conscientious examination” of the record, counsel found no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After" }, { "docid": "2445656", "title": "", "text": "McKAY, Circuit Judge. Mr. Prieto-Duran appeals the imposition of a seventy-two-month sentence for drug offenses. The sentence was pursuant to a valid plea agreement, or Memorandum of Understanding, under Fed.R.Crim.P. 11(e)(1)(c). According to 18 U.S.C. § 3742(c), “In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(c) of the Federal Rules of Criminal Procedure a defendant may not file a notice of appeal under paragraph (3) ... unless the sentence imposed is greater than the sentence set forth in such agreement.” Paragraph (3) provides that a defendant may appeal a sentence which “is greater than the sentence specified in the applicable guideline range.” Mr. Prieto-Duran received seventy-two months, a sentence to which he specifically agreed. He is complaining because the sentencing guidelines specified a range of sixty to sixty-three months for the offenses to which he pled. However, pursuant to the plea agreement, the government agreed to forego filing a sentence enhancement information for prior criminal activities under 21 U.S.C. § 851. This enhancement would have required a ten-year term of imprisonment. This is precisely the type of appeal which is barred by 18 U.S.C. § 3742(c)(1). See United States v. Bolinger, 940 F.2d 478 (9th Cir.1991); United States v. David, 967 F.2d 592 (9th Cir.1992) (unpublished opinion). We have no jurisdiction to review the trial court’s imposition of sentence in this matter. Accordingly, the appeal is dismissed. After review, we have concluded that defendant’s counsel properly filed an Anders brief in this case. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Prieto-Duran has filed a response to the Anders brief. We have considered his arguments and found them to be without merit. In addition, because there is no basis for an appeal, appellant’s motion for appointment of new counsel is denied. Counsel’s request for leave to withdraw is granted. DISMISSED." }, { "docid": "18990143", "title": "", "text": "whether the case is wholly frivolous). If the court finds a nonfrivolous issue, it will direct counsel to more fully brief the issue. Cf. United States v. Phillips, 390 F.3d 574, 576 (8th Cir.2004) (noting that we denied the Anders motion to withdraw and directed counsel to more fully brief two issues). By his own argument, Davis concedes that his appellate counsel fully briefed the drug-quantity issue. His only complaint concerns the motion to withdraw. The court’s usual remedy when confronted with a nonfrivolous issue in an Anders brief— order counsel to more fully brief the issue — was already accomplished in this case. Accordingly, Davis cannot establish prejudice. III. CONCLUSION We affirm the district court. . The Honorable Donald E. O'Brien, United States District Judge for the Northern District of Iowa. . Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (holding that after examining the record and concluding that an appeal would be wholly without merit, counsel may file a brief informing the court of any point that arguably might support an appeal, and request permission to withdraw). . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) . On the other hand, there are numerous cases where counsel raised an issue in an Anders brief, we rejected the issue on the merits, and granted the motion to withdraw. E.g., United States v. Perales, 487 F.3d 588, 589 (8th Cir.2007); United States v. Alatorre, 207 F.3d 1078, 1079 (8th Cir.2000). This procedure may be a technical violation of Anders, but nothing more. Anders, 386 U.S. at 744, 87 S.Ct. 1396. If a court gratuitously reviews an arguably frivolous issue on the merits instead of simply dismissing the case, a defendant is getting more process than he is due, rather than less. And to the extent that this ineffective assistance of counsel issue has morphed into the question of whether Davis's due process rights were denied because the Davis I panel incorrectly applied Anders, we agree with the government that this issue was not contained within the certificate of appeal-ability" }, { "docid": "13263094", "title": "", "text": "PER CURIAM. Ryan Maeder pleaded guilty to conspiring to rob a bank in violation of 18 U.S.C. §§ 371, 2113(a). He was sentenced to 57 months’ imprisonment, three years’ supervised release, $23,477 in restitution, and a $100 fine. Mr. Maeder’s counsel filed a notice of appeal, but we permitted him to withdraw and appointed substitute counsel. His new lawyer now moves to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot discern a non-frivolous issue for appeal. Because Mr. Maeder declined our invitation to file a response, see Circuit Rule 51(b), and counsel’s Anders brief is facially adequate, we limit our review of the record to the potential issues identified in the brief. See United States, v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). For the reasons set forth below, we direct counsel to either amend his brief or withdraw his motion. The facts presented during Mr. Mae-der’s plea colloquy, which he admitted were true, established the following. Mr. Maeder met with two other men, Lyle Tyson and Corey Rozowski, on August 9, 2001, to plan to rob the Bank of Drum-mond in Barnes, Wisconsin. The following day, Tyson and Rozowski robbed the bank using BB guns Mr. Maeder had given them, although Mr. Maeder was not at the bank during the robbery. Following the robbery, Tyson and Rozowski fled the bank to a cabin owned by Rozowski’s relatives. Mr. Maeder met Tyson and Rozow-ski at the cabin and gave Rozowski a ride home. In his Anders brief, counsel affirmatively represents that the district court committed no errors during its Rule 11 plea colloquy and that Mr. Maeder’s plea was “knowing and voluntary and nothing [in] the record indicates otherwise.” Thus he concludes that any challenge by Mr. Mae-der to his guilty plea on that ground would be frivolous. Our own review of the colloquy has identified two obvious errors. First, the district court failed to specifically tell Mr. Maeder that he was waiving his right to a trial by pleading guilty. Fed.R.Crim.P. 11(c)(4). Second, the district court failed" }, { "docid": "21389884", "title": "", "text": "63-78 months. He therefore asked the district court to reduce his sentence to 63 months. The Government filed a response, arguing Mr. Kurtz was not statutorily eligible for a § 3582(c)(2) reduction. On August 19, 2015, the district court denied Mr. Kurtz’s motion. He filed a timely notice of appeal on September 1, 2015. See Fed. R-App. 4(b)(l)(A)(i). C. Anders Brief We appointed the Féderal Public Defender’s Office for the District of New Mexico to represent Mr. Kurtz on appeal. On November 25, 2015, Mr. Kurtz’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which authorizes counsel to request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous. Under Anders, counsel must submit a brief to the client and the appellate court indicating any potential ap-pealable issues based on the record. The client may then choose to submit arguments- to the court. The Court must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. United States v. Calderon, 428 F.3d 928, 930 (10th Cir.2005) (citations omitted). Counsel indicated he could detect no “non-frivolous arguments that the district court erred in denying Mr. Kurtz’s Motion.” Aplt. Br. at 1. He therefore sought permission to withdraw. Counsel mailed a copy of his Anders brief to Mr. Kurtz, who filed a two-page response on January 19, 2016. II. DISCUSSION A. Standard of Review “The scope of a district court’s authority in a sentencing modification proceeding under § 3582(c)(2) is a question of law that we review de novo. We review a denial of a § 3582(c)(2) motion for abuse of discretion.” United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir.2013) (quotation, citation, and brackets omitted). When counsel submits an Anders brief,’ our review of the record is de novo. See United States v. Leon, 476 F.3d 829, 832 (10th Cir.2007)" }, { "docid": "14583957", "title": "", "text": "PER CURIAM. Alan King used stolen social security numbers to poach Hurricane Katrina relief funds, student-loan money, Pell Grant money, and credit at various banks and retailers. King pleaded guilty to stealing government property, 18 U.S.C. § 641, loan fraud, id. § 1014, false representation of social security numbers, 42 U.S.C. § 408(a)(7)(B), and federal student financial aid fraud, 20 U.S.C. § 1097(a). The district court sentenced King to a total of 105 months’ imprisonment, along with five years’ supervised release, $183,845 in restitution, and a $400 special assessment. King filed a notice of appeal; perhaps anticipating our opinion in United States v. Gammicchia, 498 F.3d 467 (7th Cir.2007) (when a criminal appeal is frivolous, the defendant’s attorneys should file an An-ders motion), his appointed counsel moved to withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). King has responded to counsel’s facially adequate brief, see Cir. R. 51(b), so we limit our review to the potential issues identified by counsel and King. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). We begin with King’s belated contention that he was not of “sound mind” when he pleaded guilty because he had ingested twice his morning dose of Elavil, a drug used to treat depression and anxiety. But other than saying that the antidepressant elevated his mood, King has not explained how it possibly could have impaired his rational faculties. See, e.g., United States v. Grimes, 173 F.3d 634, 636-37 (7th Cir.1999); United States v. Groll, 992 F.2d 755, 758 n. 2 (7th Cir.1993). Moreover, King has given us no reason to doubt the veracity of his sworn statements that, notwithstanding his ingestion of the drug, he understood the charges against him, the rights that he was relinquishing by pleading guilty, and the consequences of his plea. See Nunez v. United States, 495 F.3d 544, 546 (7th Cir.2007); United States v. Fuller, 15 F.3d 646, 650 & n. 3 (7th Cir.1994). Indeed, only a few minutes after he entered his plea, King delivered" }, { "docid": "14098565", "title": "", "text": "PER CURIAM: In this appeal, we consider the adequacy of defense counsel’s Anders brief where the defendant has advised counsel that he does not wish to challenge his guilty plea. We conclude that ordinarily counsel must file a transcript and brief the issues surrounding the plea unless the record reflects that the defendant has chosen not to challenge the plea. I. Pursuant to a written plea agreement, Julio Garcia (Garcia) pleaded guilty to possession with intent to distribute more than 500 grams of cocaine. The district court sentenced Garcia to 64 months of imprisonment and four years of supervised release. Garcia filed a timely notice of appeal. The Federal Public Defender (FPD), court-appointed counsel for Garcia, has filed a motion to withdraw and a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Clerk of Court notified Garcia of his right to respond to counsel’s Anders brief, but he has not done so. Counsel stated in his brief that Garcia advised him that he did not wish to challenge his guilty plea and for that reason counsel did not file a record of the plea colloquy nor did he brief issues surrounding the plea. Counsel did, however, review sentencing issues and explain why he found no nonfrivolous issues in this respect. We consider below the adequacy of the Anders brief under these circumstances. II. Anders established requirements for an appointed counsel seeking to withdraw from representation of a defendant on his direct criminal appeal because of the lack of nonfrivolous issues to be raised on appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. “The attorney must isolate ‘possibly important issues’ and must ‘furnish the court with references to the record and legal authorities to aid it in its appellate function.’ ” United" }, { "docid": "11778383", "title": "", "text": "PER CURIAM: Francisco Baraga appeals from his sentence of 70 months’ imprisonment, 8 years’ supervised release and a $50 special assessment imposed following his plea of guilty to conspiracy to distribute cocaine within 1000 feet of a school in violation of 21 U.S.C. § 846. Martin Estrella appeals from his sentence of 131 months’ imprisonment and a $100 special assessment imposed following his plea of guilty to conspiracy to distribute cocaine within 1000 feet of a school, in violation of 21 U.S.C. § 846, and possession of a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924. Gold-stein, Weinstein & Fuld (“GWF”), Baraga’s retained counsel, and Howard S. Ripps, Es-trella’s retained counsel, request permission to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although Anders motions are typically made by counsel appointed for indigent defendants pursuant to Fed.R.Crim.P. 44 and the Criminal Justice Act, 18 U.S.C. § 3006A, retained counsel may properly file Anders motions. Although we have never commented on this practice, we have granted Anders motions by retained counsel. See, e.g., Grimes v. United States, 607 F.2d 6, 7 (2d Cir.1979). The Supreme Court has declared in the Anders context that retained and appointed counsel share the responsibility not to “consume the time and the energies of the court or the opposing party by advancing frivolous arguments.” McCoy v. Court of Appeals of Wisc. Dist., 486 U.S. 429, 436, 108 S.Ct. 1895, 1901, 100 L.Ed.2d 440 (1988). GWF and Ripps both claim that the court should grant their requests because the appeals contain no non-frivolous issues. The government has moved for summary affirmance as to both defendants. Because the Anders briefs are inadequate, we deny GWF and Ripps permission to withdraw until the defendants have been notified by the Clerk of their respective counsels’ desires and of the opportunity to have new counsel appointed. The government’s motions for summary affirmance are denied. GWF’s and Ripps’ briefs fail to demonstrate a minimal effort to “search the record with care, and then to explain to an" }, { "docid": "22540513", "title": "", "text": "ROBERT M. PARKER, Circuit Judge: Counsel for Tracy Joseph Wagner filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel now asks that he be allowed to withdraw. Wagner similarly requests that counsel be allowed to withdraw so that he can proceed pro se on appeal. Wagner further requests that counsel’s Anders brief be stricken. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court held that after a conscientious examination of the record, if appointed counsel finds a criminal defendant’s case to be wholly frivolous, he or she should so advise the court and request permission to withdraw. This request must be accompanied by a brief referring to anything in the record that might arguably support the appeal. 386 U.S. at 744, 87 S.Ct. 1396. The court further required that a copy of the brief be furnished to the defendant so as to allow him an oppor tunity to raise any issues he so chooses. Id. The Anders decision reconciled the conflicting interests of indigent appellants in zealous representation and the judicial system in the efficient administration of justice. Anders and its progeny discuss the adequacy of the brief which the appointed counsel must file in support of the motion to withdraw. Very little discussion exists, however, about the role of the courts in reviewing Anders briefs and requests for withdrawal of counsel. See, e.g., United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996) (noting dearth of case law and holding that “if the brief explains the nature of the ease and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous.”). This case presents a recurring issue: once appointed counsel has filed an Anders brief, should the indigent defendant be allowed to reject his attorney, have the Anders brief stricken, and" }, { "docid": "7455103", "title": "", "text": "should include, but are not limited to, the issues discussed in the CPC. We note that Simon has raised other issues before us, such as ineffective assistance of counsel claims, that counsel may also choose to address upon remand. We express no view on the merits of any of the issues raised. III. CONCLUSION For the reasons set forth above, we will vacate the order of the Appellate Division and remand the case for further proceedings in accordance with this opinion. . The Virgin Islands Legislature statutorily changed the name of the Territorial Court to the Superior Court, effective January 1, 2005. . Rule 14(b) provides that an appeal of the denial of a habeas petition may not proceed in the Appellate Division without a CPC. . Third Circuit Local Appellate Rule 109.2(a) states: “Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel's Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing.”" }, { "docid": "22660609", "title": "", "text": "F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined" }, { "docid": "14537599", "title": "", "text": "POSNER, Circuit Judge. D’Marcus Mason was sentenced to 135 months in prison for a drug offense, having pleaded guilty pursuant to a plea agreement, and he filed a timely notice of appeal. Although he has not yet filed his opening brief, the government has moved to dismiss the appeal, arguing that we lack jurisdiction because Mason waived his appeal rights as part of a plea agreement. (In fact a waiver of appeal rights does not deprive us of our appellate jurisdiction, although it is a ground for dismissing the appeal.) Mason’s counsel has filed a response in which he agrees that the appeal should be dismissed because of the waiver and asks for leave to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which authorizes a criminal defendant’s lawyer to withdraw from the representation of his client on appeal if there are no nonfrivolous grounds for an appeal. The novelty that gives rise to this opinion is a motion by counsel in a criminal case to withdraw by filing a response to a motion to dismiss, rather than by filing a formal Anders brief when the opening brief on appeal is due. A waiver of appeal even in a criminal case is normally valid and binding, e.g., United States v. Nave, 302 F.3d 719, 720-21 (7th Cir.2002); United States v. Brown, 328 F.3d 787, 788 (5th Cir.2003); United States v. Andis, 333 F.3d 886, 889 (8th Cir.2003); but it “does not, in every instance, foreclose review.” United States v. Sines, 303 F.3d 793, 798 (7th Cir.2002). The plea agreement containing the waiver may have preserved some issue for appeal. United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir.2000). Or, if the plea agreement turns out to be unenforceable, maybe because the government committed a material breach or the plea was involuntary on the part of the defendant, the waiver falls with the agreement and the appellant can appeal. United States v. Woolley, 123 F.3d 627, 632 (7th Cir.1997); United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir.2002); United" }, { "docid": "2273909", "title": "", "text": "through a translator was harmless where the “translator,” another customs agent, also testified and where the translator’s fluency was not at issue). We find the reasoning of the Second and Ninth Circuits persuasive, and we adopt it. “Except in unusual circumstances, an interpreter is ‘no more than a language conduit and therefore his translation [does] not create an additional level of hearsay.’ ” Lopez, 937 F.2d at 724 (quoting United States v. Koskerides, 877 F.2d 1129, 1135 (2d Cir.1989)) (brackets in original). In Nazemian, where, as here, the review was for plain error in the absence of an objection, the court concluded that (as here) the defendant “has offered nothing to suggest that the interpreter should not have been treated as a language conduit.” 948 F.2d at 527. There is no plain error. IV. Cordero’s attorney has moved for leave to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Anders established standards for an appointed attorney who seeks to withdraw from a direct criminal appeal on the ground that the appeal lacks an arguable issue. After a “conscientious examination” of the case, the attorney must request permission to withdraw and must submit a “brief referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. at 1399. The attorney must isolate “possibly important issues” and must “furnish the court with references to the record and legal authorities to aid it in its appellate function.” United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir.1976). After the defendant has had an opportunity to raise any additional points, the court fully examines the record and decides whether the case is frivolous. Anders, 386 U.S. at 744, 87 S.Ct. at 1399-1400. Cordero’s lawyer has satisfied Anders sufficiently to trigger our obligation to examine the record. The attorney has briefed the question of whether Cordero’s convictions were based upon sufficient evidence; Corde-ro has not filed a response. The district court sustained two of Corde-ro’s objections to the presentence report (“PSR”). It reduced Cordero’s offense level to 26 because" }, { "docid": "22660608", "title": "", "text": "counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.” Id.; see also Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (stating that equal justice demands that destitute defendants be afforded adequate appellate review). This Court’s role is then to decide whether the case is wholly frivolous. If so, the Court can grant counsel’s motion to withdraw and dismiss the appeal under federal law, or proceed to a decision on the merits if state law so requires. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Id. The Supreme Court recently explained in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 753, 145 L.Ed.2d 756 (2000), that the Anders guidelines are only suggestive, not prescriptive. See also United States v. Marvin, 211 F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order" }, { "docid": "23625552", "title": "", "text": "we conclude that the district court did not abuse its discretion in denying Henderson’s motion to withdraw his guilty plea. Based on the foregoing, the Government’s motion to dismiss Henderson’s appeal for want of jurisdiction is DENIED. However, having carefully reviewed the record, we find that Henderson’s appeal raises no issue of arguable merit. Therefore, the motion of Henderson’s counsel to withdraw is GRANTED, and the appeal is DISMISSED. 5th CiR.R. 42.2. . 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . 18 U.S.C. § 922(g). . Henderson reserved the right to appeal any punishment imposed in excess of the statutory maximum and any upward departure from the applicable sentencing guidelines. . See 18 U.S.C. § 924(e)(1) (setting minimum punishment for persons convicted under § 922(g) with three prior convictions). .Pursuant to Anders, appointed counsel on appeal may move to withdraw from the case after fully examining the facts and the law pertaining to the case, concluding that tire appeal presents no legally non-frivolous questions, and submitting a brief explaining why the appeal presents no legally non-frivolous questions. Though we hold that we have jurisdiction to entertain Henderson's appeal, we find that the appeal itself raises no issue of arguable merit. Therefore, counsel has satisfied Anders sufficiently to allow his withdrawal from the case." }, { "docid": "18990142", "title": "", "text": "withdraw under Anders because there was a nonfrivolous appellate issue. Adding to the novelty of the argument, Davis contends that the Davis I panel also did not treat the issue as frivolous because the court ruled against Davis on the merits of the issue, rather than merely dismissing the issue as frivolous. Because the issue was not frivolous, and was not treated as frivolous by either counsel or the court, Davis argues that the court violated his due process rights by ultimately allowing counsel to withdraw. Even if we accept the premise upon which Davis proceeds, he cannot prevail due to the rigors of Strickland’s prejudice prong. There is no probability that the outcome of Davis’s direct appeal would have been any different had counsel not asked to withdraw pursuant to Anders. Generally, when counsel submits an Anders brief, the court independently reviews the record for any nonfrivolous issue. Anders, 386 U.S. at 744, 87 S.Ct. 1396 (noting that it is the duty of the court, not counsel, to review the record and ultimately decide whether the case is wholly frivolous). If the court finds a nonfrivolous issue, it will direct counsel to more fully brief the issue. Cf. United States v. Phillips, 390 F.3d 574, 576 (8th Cir.2004) (noting that we denied the Anders motion to withdraw and directed counsel to more fully brief two issues). By his own argument, Davis concedes that his appellate counsel fully briefed the drug-quantity issue. His only complaint concerns the motion to withdraw. The court’s usual remedy when confronted with a nonfrivolous issue in an Anders brief— order counsel to more fully brief the issue — was already accomplished in this case. Accordingly, Davis cannot establish prejudice. III. CONCLUSION We affirm the district court. . The Honorable Donald E. O'Brien, United States District Judge for the Northern District of Iowa. . Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (holding that after examining the record and concluding that an appeal would be wholly without merit, counsel may file a brief informing the court of any point that" }, { "docid": "1297099", "title": "", "text": "of Anders. Additionally, but of significance, the magistrate noted that appellate counsel did not move to withdraw as attorney for Moss. The State argued that under Lockhart v. McCotter, 782 F.2d 1275 (5th Cir.1986), Moss’s petition should be denied because he did not show prejudice, i.e., but for counsel’s alleged errors there is a reasonable probability that the conviction would be reversed on appeal. The magistrate responded that the question of prejudice would effectively be presumed — that Moss need not show specific acts of unprofessional conduct to be entitled to relief on an Anders violation, even though no nonfrivolous issues had yet been raised. The magistrate also stated that Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), which directed that a prejudice analysis is inapplicable in the case of an Anders violation, preempts application of Lockhart. III.Abuse of Writ The ruling that Moss has not abused the writ of habeas corpus will be reversed only for abuse of discretion. Shouest v. Whitley, 927 F.2d 205, 207 (5th Cir.1991). In this case, the district court appears to have done exactly as the November 1987 remand order directed: it made a determination as to whether Moss had abused the writ process by filing a second habeas corpus petition. Review of that issue is, however, unnecessary because of our determination on the merits of Moss’s petition. IV.Ineffective Assistance of Appellate Counsel A criminal defendant may not be denied representation on appeal based on appellate counsel’s bare assertion that an appeal has no merit. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Should appellate counsel move to withdraw from representation, he must file a brief advising the court of anything that might arguably support the appeal. Id. at 744, 87 S.Ct. at 1400. Likewise, before it considers the case on its merits without the assistance of counsel, the appeals court must first find that there are no nonfrivolous issues for appeal. Id. Additionally, Anders directs that “[a] copy of counsel’s brief should be furnished to the indigent, and time allowed him to raise" } ]

[ { "docid": "23379227", "title": "", "text": "not been available. He does not dispute that the pre-termination meetings occurred. He claims instead that there was far less there than met the eye. All of these technically compliant procedures were, he asserts, the product of a conspiracy to discharge him on trumpqd up charges. We agree that sham procedures do not satisfy due process and that, for purposes of something like Rule 12(b)(6), Schacht stated a claim. “No matter how complete the panoply of procedural devices which protect a particular liberty or property interest, due process also requires that those procedures be neutrally applied.” Ciechon, 686 F.2d at 517. Nevertheless, this case comes to us after a grant of summary judgment. Roughly speaking, this is the “put up or shut up” moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events. More formally, it was up to Schacht to present record evidence sufficient to create a genuine dispute of material fact that the defendants indeed conspired against him and used the pre-termination procedures as a vehicle for achieving their illicit goals. This he has failed to do. He has offered only his own self-serving affidavit and the partially confirmatory affidavit of Lois Bangs-Schacht, a fellow Oakhill employee and his wife. Schacht’s affidavit purports to attest that Oakhill followed sham procedures and to describe the motivations and beliefs of Oakhill personnel at the time they were investigating him, but he does not supply any independent record evidence to support these allegations. The affidavit of Lois Bangs-Schacht cannot serve as independent record evidence, for she signs onto the majority of Schacht’s conclusory affidavit by paragraph number without providing any basis for us to infer her personal knowledge of the material facts to which she seeks to attest, such as — crucially—the motivations of the investigating officials. These kinds of affidavits are not competent to create a genuine issue of material fact at summary judgment. Joseph P. Caulfield & Assoc., Inc. v. Litho Prods., Inc., 155 F.3d 883, 888 (7th Cir.1998); see also Patterson v." } ]

[ { "docid": "23452801", "title": "", "text": "of evidence to support the timeliness of Lanier’s case. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Here, the defendants have provided considerable evidence that Lanier had a “reasonable opportunity to discover the violation” before the indictment. In their motions for summary judgment, the defendants relied upon both Lanier’s own deposition and the affidavits of Dr. Lynn Warner and Judy Forsythe. During his deposition, Lanier testified that he knew that his telephone line had been tapped prior to his indictment because other people were able to repeat the content of his seemingly private telephone conversations. Dr. Warner swore in an affidavit that he discovered in 1990 that a conversation that he had with Lanier had been taped, and that he told Lanier that they should not discuss matters over the telephone. For-sythe swore in an affidavit that she received a tape of a conversation between Lanier and Dr. Warner in 1990, and that she told Lanier about the tape at some point in 1991. Lanier failed to provide significant probative evidence in support of his complaint to defeat the defendants’ motions for summary judgment. See Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. In response to the defendants’ motions, Lanier argued that it would have been impossible for him to discover that his telephone conversations were being recorded because no federal court had entered an order allowing the wiretapping. Lanier maintained that he only discovered that his telephone conversations had been recorded when he received discovery materials in connection with his criminal prosecution in June of 1992. This conflicts with his deposition testimony, which indicates that he knew, or at least suspected, that his telephone conversations were being taped during the investigation and prior to his May 20, 1992 indictment. When a motion for summary judgment has been filed, a party cannot create a factual issue by filing an affidavit which contradicts earlier testimony. United States ex rel. Compton v. Midwest Specialties, Inc., 142 F.3d 296, 303 (6th Cir.1998); Dotson v. United States Postal Serv., 977 F.2d 976, 978 (6th Cir.1992). Lanier cannot create a factual issue by contradicting" }, { "docid": "328809", "title": "", "text": "on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion can result in the movant’s fact being considered undisputed, and potentially the grant of summary judgment. Fed.R.Civ.P. 56(e). However, “entry of a summary judgment motion as unopposed does not automatically give rise to a-grant of summary judgment. Instead ‘the district court [is] still obliged to consider the motion on its merits, in light of the record as constituted, in order to determine whether judgment would be legally appropriate.’ ” Aguiar-Carrasquillo v. Agosto-Alicea, 445 F.3d 19, 25 (1st Cir.2006) (citing Mullen v. St. Paul Fire & Marine Ins. Co., 972 F.2d 446, 452 (1st Cir.1992) (citation and internal quotation marks omitted)). The Court need only consider the cited materials and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them.” Fed. R.Civ.P. 56(c)(3); Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir.2003) (citations omitted). Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible evidence is insufficient to create an issue of material fact on summary judgment. Johnson, 325 F.3d at 901. The key inquiry, then, is whether admissible evidence exists to support a plaintiffs claims or a defendant’s affirmative defenses, not the weight or credibility of that evidence, both of which are assessments reserved for the trier of fact. See Schacht v. Wis. Dep’t of Corrections, 175 F.3d 497, 504 (7th Cir.1999). When evaluating this inquiry, the Court must give the nonmoving party the benefit of all reasonable inferences from the evidence submitted and resolve “any doubt as to the existence of a genuine issue for trial ... against the moving party.” Celotex, 477 U.S. at 330, n. 2, 106 S.Ct. 2548 (citation omitted). DISCUSSION Mr. Pike argues that summary judgment should be entered in favor of the class members because" }, { "docid": "20071840", "title": "", "text": "causes of action that concern alleged wiretapping of the plaintiffs’ telephone conversátions; they contend that the plaintiff has failed to produce any evidence of any recorded or intercepted conversations. Also, they argue that they are protected by the doctrine of qualified immunity. Defendant Sloane argues that he is also protected by qualified immunity on the matter of his alleged unlawful search and seizure of Maureen Falk. The County of Suffolk and the Suffolk County Police Department further maintain that the plaintiffs are unable to establish Monell liability against the municipality. Finally, the plaintiffs oppose the defendants’ motions for partial summary judgment, and Maureen Falk cross-moves for sum mary judgment on her Section 1983 search and seizure claim against Sloane. DISCUSSION Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be rendered “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.” Thus, Rule 56(c) sets forth as clear conditions for summary judgment: (1) the absence of genuine dispute as to any material fact; and (2) entitlement to judgment as a matter of law. These requirements are plainly conjunctive. Further, Rule 56(e) provides that the nonmoving party “may not rest upon the mere allegations or denials of the [nonmoving] party’s pleadings____.” Rather, the response of the non-moving party to the motion for summary judgment must set forth, by affidavit or exhibit, “specific facts showing that there is a genuine issue for trial.” The Supreme Court has attempted to define what constitutes a “genuine” issue of material fact: In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), the Court stated that a “dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Thus, “if the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Id." }, { "docid": "8259655", "title": "", "text": "363 (D.C.Cir.2007). The non-moving party’s opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party is “required to provide evidence that would permit a reasonable jury to find” in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). If the evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505; see Scott v. Harris, — U.S. -, -, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007) (“[Wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, ‘there is no genuine issue for trial.’ ”) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). To defeat summary judgment, a plaintiff must produce more than “a scintilla of evidence to support his claims.” Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C.Cir.2001). III. DISCUSSION A. The Parties’ Arguments Howard argues, and Mr. Moses does not dispute, that Mr. Moses filed two petitions for bankruptcy during the pendency of this lawsuit: one in 2003 (under Chapter 7 of the Bankruptcy Code) and one in 2007 (under Chapter 13 of the Bankruptcy Code). See Defendant’s Statement of Undisputed Material Facts in Support of Its Renewed Motion for Summary Judgment ¶¶ 11-22 (“Def.’s Facts”). Both proceedings were filed in the United States Bankruptcy Court for the District of Maryland. In both cases, Mr. Moses was required to execute under penalty of perjury a “Statement of Financial Affairs” setting forth— among other things — “all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case.” Mr. Moses failed to disclose the existence of this lawsuit" }, { "docid": "5618505", "title": "", "text": "SUMMARY JUDGMENT STANDARD As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); United Ass’n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir.1990), cert. denied, 499 U.S. 923, 111 S.Ct. 1317, 113 L.Ed.2d 250 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Summary judgment is the “put up or shut up” moment in a lawsuit. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.2003), reh’g denied. Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials that “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). A genuine issue of material fact exists whenever “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir.1996), cert. denied, 520 U.S. 1116, 117 S.Ct. 1246, 137 L.Ed.2d 328 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion" }, { "docid": "14250967", "title": "", "text": "material fact exists when a rational trier of fact could not find for the nonmoving party even when the record as a whole is viewed in the light most favorable to the nonmoving party. Ritchie v. Glidden Co., 242 F.3d 713, 720 (7th Cir.2001). “The mere existence of an alleged factual dispute will not defeat a summary judgment motion; instead, the nonmovant must present definite, competent evidence in rebuttal.” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir.2004). The party with the burden of proof on an issue must show that there is enough evidence to support a jury verdict in his favor. Lawrence v. Kenosha County, 391 F.3d 837, 842 (7th Cir.2004); see also Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.2003) (“summary judgment ‘is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events’ ”) (quoting Schacht v. Wisconsin Dep’t of Corr., 175 F.3d 497, 504 (7th Cir.1999)). The existence of cross-summary judgment motions doesn’t imply that there are no genuine issues of material fact: “[pjarties have different burdens of proof with respect to particular facts; different legal theories will have an effect on which facts are material; and the process of taking the facts in the light most favorable to the non-movant, first for one side and then for the other, may highlight the point that neither side has enough to prevail without a trial.” R.J. Corman Derailment Servs., LLC v. International Union of Operating Eng’rs, Local 150, 335 F.3d 643, 647-648 (7th Cir.2003). The court isn’t required to grant summary judgment for either side when faced with cross-motions. “Rather, the court is to evaluate each motion on its merits, resolving factual uncertainties and drawing all reasonable inferences against the movant.” Crespo v. Unum Life Ins. Co. of America, 294 F.Supp.2d 980, 991 (N.D.Ill.2003) (citations omitted); see also O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th Cir.2001) (“With cross-motions, our review of the record requires that we" }, { "docid": "11892866", "title": "", "text": "The summary judgment standard under Rule 56 is familiar: summary judgment is appropriate when there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c) (made applicable by Fed. R. Bankr.P. 7056). On a motion for summary judgment, then, “[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003) (internal quotation omitted). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is the “put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.” Hammel, 407 F.3d at 859 (internal quotation omitted). When a defendant moves for summary judgment, the plaintiff must adduce evidence to support each element of his claim on which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Failing that, the motion will be granted. See Brummett v. Sinclair Broad. Group, Inc., 414 F.3d 686, 692-94 (7th Cir.2005). When a defendant moves for summary judgment on an affirmative defense, however, he has the burden of proof and so must submit evidence establishing each element of the defense. See Zenith Elec. Corp. v. Panalpina, Inc., 68 F.3d 197, 201 (7th Cir.1995). Otherwise, the motion will be denied. 2. Stock Sales a. Liability as Initial Transferee The undisputed facts show as a matter of law that none of the banks was an initial transferee potentially liable to the Trust under section 550(a)(1) in connection with the stock sales. Section 544 of the Code enables a trustee to avoid certain pre-petition transfers of property fraudulent under federal or state law. See 11 U.S.C." }, { "docid": "12715169", "title": "", "text": "judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Summary judgment must be granted if no reasonable trier of fact could find for the non-moving party. See id. Conversely, if a reasonable trier of fact could find for the non-moving party, the Court must deny summary judgment. See id. When the non-moving party bears the burden of proof at trial, the moving party’s burden can be “discharged by ‘showing’— that is, pointing out to the District Court— that there is an absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party has carried its burden of establishing the absence of a genuine issue of material fact, the burden shifts to the non-moving party to “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When the non-moving party’s evidence in opposition to a properly-supported motion for summary judgment is merely “colorable” or “not significantly probative,” the Court may grant summary judgment. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. Further, when a non-moving party who bears the burden of proof at trial has failed, in opposition to a motion for summary judgment, to raise a disputed fact issue as to any essential element of his or her claim, summary judgment should be granted because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. In opposing summary judgment, a non-movant may not “rest upon mere allegations, general denials, or ... vague statements.” Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.), cert. denied, 502 U.S. 940, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991); Schoch v. First Fidelity Bancorporation," }, { "docid": "7515066", "title": "", "text": "the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505. Reasonable inferences that may be made from the proffered evidentiary record should be drawn in favor of the non-moving party, in this case, Mrs. Marks. See Adams, 233 F.3d at 1246. However, “[i]f the [non-moving party’s] evidence is merely color-able or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Conversely, even where a movant’s facts are undisputed, if two reasonable factfinders could reach different conclusions or “ultimate inferences” from the undisputed facts, summary judgment is not warranted. See Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1382 (10th Cir. 1980). III. Evidentiary Issues On May 2, 2007, Mr. Hentges filed a Motion to Strike (Adv. Doc. 23), in which he objects to the admissibility of Exhibit C to Plaintiffs Response, contending that the records contained in the exhibit lack a proper foundation and constitute inadmissible hearsay. Mr. Hentges also contends that the introductory page of the exhibit appears to be a summary of materials not attached to the exhibit, and therefore the summary does not comply with Federal Rule of Evidence 1006. Finally, Mr. Hentges argues that the exhibit does not support the proposition for which it is cited. In Plaintiffs Response to Motion to Strike (Adv. Doe. 26), Mrs. Marks contends that the documents are bank records that are self-explanatory, and in essence, self-authenticating, and that the summary is an accurate summary of the disposition of funds from accounts into which funds loaned by Mrs. Marks were deposited. Documents submitted in support of or in opposition to a motion for summary judgment “must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) [of the Federal" }, { "docid": "11101540", "title": "", "text": "question about whether Fischer had a right to the $3,500 he claims Cohen appropriated. a. Summary Judgment The summary judgment standard is familiar. On a motion for summary judgment, “[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003) (internal quotation omitted). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is the “put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.” Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir.2005) (internal quotation omitted). When a defendant moves for summary judgment, consequently, the plaintiff has the obligation to make out his prima facie case. To do so, he must adduce evidence on every element of his claim on which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Failing that, summary judgment will be entered for the defendant. See, e.g., Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d 686, 694 (7th Cir.2005). b. Count I: Section 523(a)(2)(B) Cohen is entitled to summary judgment on Fischer Investment’s claim under section 523(a)(2)(B), the claim that Cohen induced Fischer Investment to make the loan by fraudulently submitting a false list of The Joblotter’s accounts receivables. To prevail on a section 523(a)(2)(B) claim, a creditor must prove five elements: (1) the debtor made a statement in writing; (2) the statement concerned the debtor’s financial condition; (3) the statement was materially false; (4) the debtor made the representation with an intent to deceive the creditor; and (5) the creditor actually and reasonably relied on the misrepresentation. In re Morris, 223 F.3d 548, 552 (7th Cir.2000); In" }, { "docid": "22252866", "title": "", "text": "But the defendants whose medical judg ment is properly being questioned is Dr. Wilson’s, and possibly Beighley’s and Paul-Blanc’s depending on their involvement in Arnett’s treatment — individuals who continued to see Arnett on a regular basis after Dr. Davis instructed that he be placed back on Enbrel. Arnett had the burden to come forth with evidence to show that Dr. Webster was personally liable for his alleged inadequate medical treatment after December 2006, and he has failed to do so. See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.2003) (“[S]ummary judgment is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.”) (quotation marks omitted). We realize that this may be the result of Ar-nett’s pro se status and lack of legal skills in conducting discovery, but Arnett’s pro se status doesn’t alleviate his burden on summary judgment. See Marion v. Radtke, 641 F.3d 874, 876-77 (7th Cir.2011) (“[Wjhen a plaintiff fails to produce evidence, the defendant is entitled to judgment; a defendant moving for summary judgment need not produce evidence of its own.”). III. Conclusion For the foregoing reasons, we Affirm dismissal of Richard Veach and David Parker for failure to state a claim, Affirm the grant of summary judgment in favor of Dr. Thomas Webster, but Reverse dismissal of Dr. Eric Wilson, Yves Paul-Blanc, and Julia Beighley, and Remand for further proceedings. . The defendants argue that there is nothing in the record to support these facts, but they can be found in Dr. Bergquist's September 5, 2007, letter that was attached to Arnett’s complaint. We also note that several authoritative sources support this description of the disease. See The Merck Manual of Diagnosis and Therapy 283-89 (18th ed.2006) (stating that RA is a chronic autoimmune disease resulting in progressive destruction of the joints). While Arnett will need to present admissible evidence to substantiate such facts for purposes of summary judgment, he does not need to do so at the pleading stage." }, { "docid": "2543564", "title": "", "text": "told him to turn in his uniform and company-issued cell phone. Id. at p. 44. Mitchell did not explicitly say that Mason was fired, but according to Mason, it was obvious from the tenor of the conversation. Id. at p. 45. Mason thinks that Mitchell told him the reason for his termination was that Mason was sick and could not work, but also states that he has difficulty remembering the conversation clearly. (Doc. 38-3, p. 29). Rather than turn in his uniform and cell phone in person, Mason gave them to fel low MCS employee Jack Moore, who turned them in to MCS. Id. at 46. On May 5, 2009, Mason filed a charge of discrimination with the EEOC, alleging that he had been subjected to “racial harassment and racial comments” by Mitchell during his employment at MCS; that he had been treated differently than similarly situated white drivers; and that he was terminated after Mitchell told him to turn in his uniform and cell phone because he was sick and could not work. (Doc. 48-19, p. 2). II. SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” The trial court’s function 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). “The mere existence of some evidence to support the non-moving party is not sufficient for denial of summary judgment; there must be ‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.’ ” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir.2002) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-250, 106 S.Ct. 2505. (internal" }, { "docid": "8266607", "title": "", "text": "U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). He is required to provide evidence that would permit a reasonable jury to find in his favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). If the nonmovant’s evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505; see Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007) (“[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is ‘no genuine issue for trial.’ ”) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than “a scintilla of evidence to support his claims.” Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C.Cir.2001). III. THE AGENCY HAS CARRIED ITS INITIAL BURDEN Mr. Moneada argues that the FAA’s renewed motion for summary judgment must be denied because the agency “has totally failed to establish, by [its] filing, the absence of a genuine issue.” Opp. S.J. at 1. The agency has failed in this regard, says Mr. Moneada, because — for reasons set forth in his motion to strike — nearly all of the exhibits on which the agency’s renewed motion relies are inadmissible. Id. The Court rejects this argument for two reasons. First, Mr. Moneada appears to believe that the FAA may carry its initial burden of production only by coming forward with admissible evidence affirmatively demonstrating the absence of any genuine disputes. See, e.g., Mot. Strike at 2 (“Defendant by not submitting admissible evidence as part of his motion or to support his Points and Authorities has failed to carry his initial burden of production.”). He is incorrect. Rule 56 contains “no express or implied requirement” that the movant “support its motion with affidavits or other similar materials negating the opponent’s claim.” Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. 2548;" }, { "docid": "635622", "title": "", "text": "v. City of Rockford, 349 F.3d 1015, 1019 (7th Cir.2003). The primary purpose of granting a summary judgment motion is to avoid unnecessary trials when there is no genuine issue of material fact in dispute. Trautvetter v. Quick, 916 F.2d 1140, 1147 (7th Cir.1990); Farries v. Stanadyne/Chicago Div., 832 F.2d 374, 378 (7th Cir.1987) (quoting Wainwright Bank & Trust Co. v. Railroadmens Fed. Savs. & Loan Ass’n of Indianapolis, 806 F.2d 146, 149 (7th Cir.1986)). Where the material facts are not in dispute, the sole issue is whether the moving party is entitled to a judgment as a matter of law. ANR Advance Transp. Co. v. Int’l Bhd. of Teamsters, Local 710, 153 F.3d 774, 777 (7th Cir.1998). On a motion for summary judgment, “[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003) (internal quotation omitted). Summary judgment is the “put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.” Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir.2005) (internal quotation omitted). In 1986, the United States Supreme Court decided a trilogy of cases that encourages the use of summary judgment as a means to dispose of factually unsupported claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The burden is on the moving party to show that no genuine issue of material fact is in dispute. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Matsushita, 475 U.S. at 585-86, 106 S.Ct. 1348. All reasonable inferences drawn from the underlying facts must be viewed in a light most favorable" }, { "docid": "11101539", "title": "", "text": "$500, with the word “Mar-iis” written in the “memo” space. (Exs. E and L to D. 7056-1 Stmt.). He also supplies the print-out of what seems to be a February 2, 2003 e-mail from Fischer stating: “Please indicate how you will re-pay the $2,500 of Mariis’ money which you still owe me.” (Ex. K to D. 7056-1 Stmt.). Fischer claims the five checks were not meant to pay the Mariis debt but were meant as payments on the March 2000 loan to Cohen and The Joblotter. (Ex. 9 (Fischer dep. at 58-59) to P. 7056-2 Resp.). 3. Discussion Cohen’s motion for summary judgment on Fischer Investment’s section 523(a)(2)(B) claim in Count I will be granted. Fischer Investment has supplied no evidence that the list of accounts receivable Borchert provided was false — or, if false, that Cohen knew of its falsity and so intended to defraud Fischer Investment. The motion for summary judgment on the section 523(a)(4) claim in Count II, however, must be denied. Fischer Investment has adduced enough evidence to raise a factual question about whether Fischer had a right to the $3,500 he claims Cohen appropriated. a. Summary Judgment The summary judgment standard is familiar. On a motion for summary judgment, “[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003) (internal quotation omitted). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is the “put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.” Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir.2005) (internal quotation omitted). When a defendant moves for summary judgment, consequently, the plaintiff has the obligation to" }, { "docid": "17177521", "title": "", "text": "by [its] own affidavits, or depositions, answers to interrogatories, and admissions on file, ‘designate’ specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. 2548 (internal citations omitted). Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the non-moving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.Cir.1987); Liberty Lobby, 477 U.S. at 251, 106 S.Ct. 2505 (the court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”). “If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). “Mere allegations or denials in the adverse party’s pleadings are insufficient to defeat an otherwise proper motion for summary judgment.” Williams v. Callaghan, 938 F.Supp. 46, 49 (D.D.C.1996). The adverse party must do more than simply “show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to “come forward with ‘specific facts showing that there is a germine issue for trial.’ ” Id. at 587, 106 S.Ct. 1348 (citing Fed.R.Civ.P. 56(e)) (emphasis in original). III. DISCUSSION The Court shall turn first to consider Plaintiffs [156] Motion for Summary Judgment on the Issue of UTS’s Conversion, which relates" }, { "docid": "14250966", "title": "", "text": "to any of its citizens is nondiscriminatory. The City argues that it shouldn’t now be required to repair or improve its sidewalks because sidewalks don’t constitute a “service, program, or activity” under the ADA, LaPorte Ordinance No. 733 relieves the City of responsibility for upkeep, repair, or improvement of its sidewalks, and a requirement to repair or improve its sidewalks would create an undue burden and financial hardship to the City. Summary Judgment Standard Summary judgment is appropriate when “the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Crv. P. 56(c). In deciding whether a genuine issue of material fact exists, “the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine issue of material fact exists when a rational trier of fact could not find for the nonmoving party even when the record as a whole is viewed in the light most favorable to the nonmoving party. Ritchie v. Glidden Co., 242 F.3d 713, 720 (7th Cir.2001). “The mere existence of an alleged factual dispute will not defeat a summary judgment motion; instead, the nonmovant must present definite, competent evidence in rebuttal.” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir.2004). The party with the burden of proof on an issue must show that there is enough evidence to support a jury verdict in his favor. Lawrence v. Kenosha County, 391 F.3d 837, 842 (7th Cir.2004); see also Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.2003) (“summary judgment ‘is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events’ ”) (quoting Schacht v. Wisconsin Dep’t of Corr., 175 F.3d 497," }, { "docid": "22247401", "title": "", "text": "whose properties ran afoul of the City’s policy. Mr. Albiero does little to help his case, as he must when confronted with a summary judgment motion. See Fed.R.Civ.P. 56(e). He offers no evidence that he was singled out for unfair treatment; more precisely, he does not demonstrate that the lamentable state of his property was corrected before the sign was erected. Mr. Albiero puts forth only his own affidavit that no violations existed in June 1997, based not on a personal inspection but on a policy of repairing any violations within 72 hours. He also avers in conclusory fashion that there were numerous inspections of the building thereafter that evidenced no violations. Under our precedent, these conclusory statements, unsupported by the evidence of record, are insufficient to avoid summary judgment. We repeatedly have held that “[s]elf-serving affidavits without factual support in the record will not defeat a motion for summary judgment.” Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir.1993); see also Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir.1998) (“Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter!;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.”) (citation and quotation marks omitted). We require that the party opposing the motion take reasonable steps to provide the district court sufficient evidence to create a genuine issue of material fact. See Shank v. William R. Hague, Inc., 192 F.3d 675, 683 (7th Cir.1999); see .also Schacht v. Wisconsin Dep’t of Corr., 175 F.3d 497, 504 (7th Cir.1999) (indicating that summary judgment “is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events”). Mr. Albiero cannot meet his burden on summary judgment merely by averring that he followed a repair policy. He must point to evidence in the record that indicated that he was treated differently than other similarly situated landlords, and this he" }, { "docid": "9562847", "title": "", "text": "court grants Ms. Eubanks’s motion for leave to file supplemental exhibits and, since they are attached to the motion, deems them filed for purposes of the summary judgment motion. II. Summary Judgment Standard “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (2011). A fact is “material” if it might affect the outcome of the litigation under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conversely, where a fact wouldn’t affect the outcome of a suit, whether it is disputed is irrelevant. Id. Disputes over material facts are “genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is the time when a plaintiff must come forward with enough evidence to show that he can convince a trier of fact of his version of the facts by a preponderance of the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. 2505; Johnson v. Cam bridge Industries, Inc., 325 F.3d 892, 901 (7th Cir.2003) (describing summary judgment as the “put up or shut up” moment of a lawsuit). While reviewing Norfolk Southern’s summary judgment motion, the court doesn’t weigh the evidence but rather accepts the admissible evidence Ms. Eu-banks has presented and construes all facts and draws all reasonable inferences from those facts in favor of Ms. Eubanks, the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505; see also Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.2009) (“Admissibility is the threshold question because a court may consider only admissible evidence in assessing a motion for summary judgment.”). III. Jurisdiction The court has diversity jurisdiction" }, { "docid": "109964", "title": "", "text": "2004 and 2008. Yet, there are no allegations that Vasiliades, Maggio, or Krisko undertook any relevant actions against Gekas during this timeframe. In addition, there is no evidence connecting Lagatutta or Ranieli to either the cease and desist order or the administrative complaint. In fact, the record indicates that Fernando E. Grillo issued the cease and desist order and Mary Doherty issued the administrative complaint, neither of whom are named defendants in this action. Finally, Gekas has not shown that Ra-nieli’s refusal to speak with him in August 2004 or Lagatutta’s refusal to reschedule their meeting in 2007 were in any way related to his 1988 conversations with the Deputy Governor. Therefore, Gekas has failed to establish a prima fade case for First Amendment retaliation. See Devbrow v. Gallegos, 735 F.3d 584, 588 (7th Cir.2013) (finding that a plaintiffs speculation cannot create a genuine issue of material fact regarding retaliatory motive). “As we have said before, summary judgment is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.2003) (internal quotation and citation omitted). Given Gekas’ complete inability to connect the events that happened to him in 2004 to the conversations he had in 1988, his First Amendment retaliation claims cannot withstand summary judgment. III. CONCLUSION Therefore, for the foregoing reasons, the judgment of the district court is AFFIRMED. . The record is unclear whether his last name is spelled \"Lagatutta” or “Lagattuta.” . The record is devoid of exact dates regarding many of the events underlying Gekas’ claims. . Gekas’ statute of limitations argument in his reply brief focused solely on the 2004 cease and desist order, and did not discuss whether his claims based on the 2004 administrative complaint were timely. Thus, that issue is waived. Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir.2005) (\"Perfunctory or undeveloped arguments are waived.”) (citations omitted). . At oral argument, Gekas' counsel conceded that there is" } ]

[ { "docid": "16293629", "title": "", "text": "existence and possession by the EOUST. As with most of the appellants' arguments, this statement is completely off mark because if the documents do not exist, or the EOUST never received the documents, then no claims against the EOUST exist. . The Wades argue alternatively that if we find that no extrinsic evidence was considered, the court erred anyway by not converting the motion to dismiss into a motion for summary judgment. Nothing requires the district court to convert a dismissal motion in this manner. . When conversion should have, but did not, take place, the district court will not be reversed if nothing else could have been submitted that would alter a finding of summary judgment. Beam, 838 F.2d at 245 n. 2. Because we are able to reach a decision on alternative grounds, we are not required to rely on this finding. . In the summary judgment posture that the Wades urge, the question is whether the agency conducted a search reasonably calculated to uncover all relevant documents in response to the FOIA request. Weisberg v. United States Dept. of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). The issue is not whether other documents may exist, but rather whether the search for undisclosed documents was adequate. Id. Therefore, the appellees’ statements about the issue being one of \"purging” is equally inappropriate in a summary judgment situation. Further analysis under summary judgment is also unavailing. The adequacy of the document search ■ is judged under a reasonableness standard. The agency may rely on reasonably detailed noncon-clusory affidavits submitted in good faith to support their claims of compliance. Id. The appellants state that the appellees are not disclosing their withholding documents relevant to their request. They offer no support for this proposition other than speculation. The very documents improperly considered in the district court could now be used to refute the appellants’ assertions that the EOUST official possessed the requested documents. That assertion was the only one made by the appellants. In the face of government affidavits made in good-faith, speculation would not defeat the summary judgment motion on this issue." } ]

[ { "docid": "11491743", "title": "", "text": "relevant), in addition to files indexed under Perot’s name or personal identifier. B. Adequacy of Customs’ Search To win summary judgment on the adequacy of a search, the agency must demonstrate beyond material doubt that its search was “ ‘reasonably calculated to uncover all relevant documents.’” Truitt, 897 F.2d at 542 (quoting Weisberg v. United States Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983) (Weisberg II)). The agency must make “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested,” Oglesby v. United States Dep’t of Army, 920 F.2d 57, 68 (D.C.Cir.1990) (citing Weisberg III, 745 F.2d at 1485; Weisberg II, 705 F.2d at 1351), and it “cannot limit its search to only one record system if there are others that are likely to turn up the information requested.” Id. To show reasonableness at the summary judgment phase, an agency must set forth sufficient information in its affidavits for a court to determine if the search was adequate. Id. The affidavits must be “reasonably detailed ..., setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Id. Conclusory statements that the agency has reviewed relevant files are insufficient to support summary judgment. Weisberg v. United States Dep’t of Justice, 627 F.2d 365, 370 (D.C.Cir.1980) (Weisberg I) (affidavit asserting that agency official “ha[s] conducted a review of [agency] files which would contain [responsive] information,” without describing approach to search or identifying files searched, is insufficiently detailed to permit summary judgment). Turning to the affidavits proffered by the agency in this case, it is helpful to review Customs’ description of its recordkeeping system and the breadth of its search. The agency maintains “more than 113 systems of records” that are “accessible by a name or personal identifier.” Supplemental Decl. of Kathryn C. Peterson at 2. It does not have a central index of all records, but instead maintains two electronic records systems: a system of investigatory files (the Treasury Enforcement Communications" }, { "docid": "21312062", "title": "", "text": "not search the EID and IIDS databases for responsive records. Pis.’ Mot. at 31-32. Finally, Plaintiffs argue that Defendants’ search was inadequate because they faüed to search any CBP records. Id. at 32. FOIA requires an agency to conduct a search for responsive records that is '“reasonably calculated to discover the requested documents.” SafeCard Servs., 926 F.2d at 120Í. “In general, the adequacy of a search is ‘determined not by the fruits of the search, but by the appropriateness of [its] methods.’” Hodge v. FBI, 703 F.3d 575, 579 (D.C.Cir.2013) (quoting Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir.2003)). In order to prevaü on summary judgment, “the agency must show that it made a good faith effort to conduct a search for the requested records, using methods Which can be. reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C.Cir.1990) (citation omitted). To carry this burden, the agency may submit1 a '“reasonably detailed affidavit, setting , forth the search terms and the type , of search performed, and averring that all files likely to -contain responsive materials (if such records exist) were searched.” Id. “The adequacy of the search, in turn, is-judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C.Cir.1984) (citation omitted). - The court agrees with Plaintiffs’ first contention that Defendants have not explained what search, if any, they undertook to locate extract identification and preparation records sought in FOIA Request III. Indeed, the government does not even respond to this argument. See Defs.’ Reply at 17-18. Because Defendants do not address what search, if any, they conducted, the court will deny summary judgement as to the adequacy of their search in response to FOIA Request III. See Oglesby, 920 F.2d at 68. Defendants shall submit an affidavit that sets forth the search efforts undertaken in response to FOIA Request HI. Plaintiffs next argue that the search Defendants conducted in response to FOIA Requests I and II was inadequate. Plaintiffs’ first" }, { "docid": "21122328", "title": "", "text": "agency’s search for responsive records, the adequacy of the agency’s application of FOIA exemptions to his or her request, or both. A court assesses the adequacy of the federal agency’s search for responsive records by applying a reasonableness test. Campbell v. Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998). The adequacy of a FOIA search is generally determined by the appropriateness of the methods used to carry out the search, and not by the actual search results. Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C.Cir.2003). The agency must make “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested,” and it “cannot limit its search to only one record system if there are others that are likely to turn up the information requested.” Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C.Cir.1990). That said, the agency’s search for records need not be exhaustive, but merely reasonable. Id. The proper inquiry is not whether there might exist additional documents possibly responsive to a request, but whether the agency eon-ducted a search reasonably calculated to uncover relevant documents. Id.; see also Iturralde, 315 F.3d at 315. To demonstrate that a search for documents was reasonable at the summary judgment phase, a federal agency may submit “reasonably detailed” affidavits or declarations that describe the search performed. Schoenman v. FBI, 764 F.Supp.2d 40, 45 (D.D.C.2011). The affidavits or declarations may be submitted by an individual who either participated in the search or coordinated the search; See Ctr. for Int’l Envtl. Law v. Office of U.S. Trade Representative, 237 F.Supp.2d 17, 23 (D.D.C.2002); see also SafeCard Servs. v. Sec. Exch. Comm’n, 926 F.2d 1197, 1200 (D.C.Cir.1991). In compliance with the reasonableness standard, these affidavits “must ... set [ ] forth the search terms and the type of search performed, and aver [ ] that all files likely to contain responsive materials (if such records exist) were searched.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995). If the agency can make that showing, then" }, { "docid": "5188119", "title": "", "text": "adequacy of the Department’s search for documents responsive to his FOIA request. He argues that the Department has failed to demonstrate with sufficient detail that the “scope and method of the Defendant’s searches were reasonably calculated to uncover all relevant documents[.]” Opp. at 8. Mr. Beltranena complains in particular of the absence of references to searches of individual email accounts and workstations, except for those at the U.S. Embassy in Guatemala. Opp. at 8. But as the Department states in support of its renewed motion, FOIA does not require a “perfect search that uncovers every responsive document that might possibly exist.” Reply at 3. In analyzing the adequacy of a FOIA search, the court is guided by principles of reasonableness. Oglesby v. Army, 920 F.2d 57, 68 (D.C.Cir.1990). To obtain summary judgment on the issue of the adequacy of the records search, an agency must show that, looking at the facts in the light most favorable to the requester, the agency’s search was “reasonably calculated” to uncover relevant documents. Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C.Cir.1984) (citations omitted). See also Oglesby, 920 F.2d at 68 (agency must show “good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested”); Shaw v. State Dep’t, 559 F.Supp. 1053, 1057 (D.D.C.1983) (agency’s search need not be exhaustive, merely reasonable). To carry this burden, the agency may submit affi davits or declarations that, in reasonable detail and in a non-conclusory fashion, set forth the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of evidence to the contrary, such affidavits or declarations are sufficient to show an agency’s compliance with FOIA. Id. at 127. Ms. Grafeld’s Third Declaration successfully establishes the adequacy of the Department’s searches in response to Mr. Beltranena’s FOIA request. The court will not repeat all of the relevant facts recounted at length by Ms. Grafeld, but it notes in particular that Ms. Grafeld states that the Department conducted nine searches in four records systems, and that she clearly" }, { "docid": "9068167", "title": "", "text": "meets its burden of demonstrating beyond material doubt that it \"made a 'good faith effort to conduct a search using methods which can be reasonably expected to produce the information requested,' \" DiBacco , 795 F.3d at 188 (alterations adopted) (quoting Oglesby , 920 F.2d at 68 ), by submitting to the court a \"reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched,\" Ancient Coin Collectors Guild , 641 F.3d at 514 (quoting Valencia-Lucena v. U.S. Coast Guard , 180 F.3d 321, 326 (D.C. Cir. 1999) ). Agency affidavits or declarations explaining search scope and methodology are \"accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.\" SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted); Chambers v. U.S. Dep't of Interior , 568 F.3d 998, 1003 (D.C. Cir. 2009) (recognizing substantial weight traditionally accorded to agency affidavits in FOIA adequacy-of-search cases). The FOIA requester bears the burden, then, of overcoming the presumption of good faith afforded to agency declarations by \"rais[ing] substantial doubt, particularly in view of well defined requests and positive indications of overlooked materials,\" DiBacco , 795 F.3d at 188 (internal quotation marks omitted), that the search was adequate. See also Hodge v. FBI , 703 F.3d 575, 582 (D.C. Cir. 2013) (upholding agency response to FOIA request when requester \"ha[d] not presented sufficient evidence to rebut [the] presumption\" accorded to the agency's averments). 2. CBP's Search CBP conducted two searches: one of CBP's central office and another of its New York field office. The adequacy of each of those searches is examined. In support of its motion, CBP submitted the declaration of the Director of CBP's FOIA Division, who averred that \"CBP personnel determined that responsive records within CBP's control were likely to be found\" within the TECS and ATS databases, and searches were performed on those databases \"using Plaintiff's name and date of birth.\"" }, { "docid": "3842979", "title": "", "text": "91 L.Ed.2d 265 (1986). In FOIA cases, summary judgment may be granted solely on the basis of agency affidavits provided that they are clear, specific and reasonably detailed, and there is no contradictory evidence on the record or evidence of agency bad faith. See Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1387 (D.C.Cir.1979). Where the adequacy of a FOIA search is at issue, for an agency to prevail on summary judgment, it “must establish beyond a material doubt that its search was reasonably calculated to uncover all relevant documents.” Nation Magazine v. United States Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995). Courts have interpreted this responsibility to mean that agencies must make “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. United States Dep’t of Army, 920 F.2d 57, 68 (D.C.Cir.1990) (citing Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984)). While a search is not rendered unreasonable if it fails actually to “uncover[ ] every document extant,” SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C.Cir.1991), it will be deemed inadequate if the “affidavit does not show, with reasonable detail, that the search method ... was reasonably calculated to uncover all relevant documents.” Oglesby, 920 F.2d at 68. Courts may assess the reasonableness of the search by examining the agency affidavit’s description of the scope and methods used in the search. To survive challenge, the agency must provide “[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Oglesby, 920 F.2d at 68. Further, the affidavit should additionally “describe at least generally the structure of the agency’s file system which makes further search difficult.” Church of Scientology v. I.R.S., 792 F.2d 146, 151 (D.C.Cir.1986). A. The Service Conducted an Adequate Search 1. Plaintiff is not entitled to discovery. Plaintiff asserts that it is entitled to discovery into the adequacy of the Service’s search, the existence of" }, { "docid": "3898309", "title": "", "text": "Standard for Adequacy of Agency Search “A requester dissatisfied with the agency’s response that no records have been found may challenge the adequacy of the agency’s search by filing a lawsuit in the district court after exhausting any administrative remedies.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999). To prevail on summary judgment, “the agency must demonstrate beyond material doubt that its search was reasonably calculated to uncover all the relevant documents.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995) (internal quotations and citations omitted). An agency must search for documents in good faith, using methods that are reasonably expected to produce the requested information. Valencia-Lucena, 180 F.3d at 326 (citing Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C.Cir., 1990)). The principal issue is not whether the agency’s search uncovered responsive documents, but whether the search was reasonable. Oglesby, 920 F.2d at 67 n. 13 (citing Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir.1986); Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C.1996)). The agency need not search every record in the system or conduct a perfect search. SafeCard Servs., Inc., 926 F.2d at 1201; Meeropol, 790 F.2d at 952, 956. Nor need the agency produce a document where “the agency is no longer in possession of the document[ ] for a reason that is not itself suspect.” SafeCard Servs., 926 F.2d at 1201. Instead, to demonstrate reasonableness, the agency must set forth sufficient information in affidavits for the court to determine, based on the facts of the case, that the search was reasonable. Nation Magazine, 71 F.3d at 890 (citing Oglesby, 920 F.2d at 68). Again, while an agency’s affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with evidence of bad faith. SafeCard Servs., 926 F.2d at 1200. But such evidence cannot be comprised of “purely speculative claims about the existence and discovera-bility of other documents.” Id. If the record raises substantial doubts regarding the agency’s efforts, “particularly in view of well defined requests and positive indications of overlooked materials,” summary judgment is not appropriate." }, { "docid": "1057501", "title": "", "text": "effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 68 (D.C.Cir.1990). See also Weisberg v. United States Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983). “[T]he competence of any records-search is a matter dependent upon the circumstances of the case.” Founding Church of Scientology of Wash., D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 834 (D.C.Cir.1979). Thus, in response to a challenge to the adequacy of its search, the agency must provide a “reasonably detailed affidavit, setting forth the search terms and type of search performed, and averring that all files likely to contain responsive materials ... were searched.” Oglesby, 920 F.2d at 68. The agency need not “set forth with meticulous documentation the details of an epic search for the requested records,” Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982) (“in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA”), but it cannot be “so general as to raise a serious doubt whether the [agency] conducted a reasonably thorough search of its records.” Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). While agency declarations in this regard are afforded a presumption of good faith, see SafeCard Services, Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C.Cir.1991); see also Trans Union LLC v. Fed. Trade Comm’n, 141 F.Supp.2d 62, 69 (D.D.C.2001) (adequate affidavit can be rebutted only “with evidence that the agency’s search was not made in good faith” (citing Maynard v. Cent. Intelligence Agency, 986 F.2d 547, 559 (1st Cir.1993) and Miller v. United States Dep’t of State, 779 F.2d 1378, 1383 (8th Cir.1985))), if “the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542. Plaintiff alleges two inadequacies on the part of the" }, { "docid": "18490373", "title": "", "text": "and (b). As part of its showing, an agency must also demonstrate that when “viewing the facts in the light most favorable to the requester, ... [it] ‘has conducted a search reasonably calculated to uncover all relevant documents.’ ” Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 552 (D.C.Cir.1994) (quoting Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984)). The agency must show that it made a “good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C.Cir.1990). An “agency generally need not ‘search every record system,’ ... but ‘cannot limit its search to only one record system if there are others that are likely to turn up the information requested.’ ” Campbell v. United States Dep’t of Justice, 164 F.3d 20, 27-28 (D.C.Cir.1998) (quoting Oglesby, 920 F.2d at 68). Furthermore, the adequacy of a search is not determined by its results, but by the method of the search itself, Weisberg, 745 F.2d at 1485, and a court is guided in this determination by principles of reasonableness, Oglesby, 920 F.2d at 68. An agency’s failure to find a particular document does not undermine the determination that the search was adequate. Wilbur v. CIA, 355 F.3d 675, 678 (D.C.Cir.2004); Nation Magazine, Washington Bureau v. United States Customs Serv., 71 F.3d 885, 892 n. 7 (D.C.Cir.1995). To show that its search was reasonable, the agency may submit affidavits or declarations that explain in reasonable detail and in a non-conclusory fashion the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. With respect to responsive documents located but not released or not released in full, a federal agency may meet the standard required for summary judgment solely on the basis of information contained in affidavits or declarations provided that they (1) “describe the documents and the" }, { "docid": "17452038", "title": "", "text": "must ‘conductf ] a search reasonably calculated to uncover all relevant documents,’ and, if challenged, must demonstrate ‘beyond material doubt’ that the search was reasonable.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.Cir.1990) (footnotes omitted) (quoting Weisberg II, 705 F.2d at 1351); accord Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C.Cir.1990) (“In order to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.”). The adequacy of a search “is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Weisberg III, 745 F.2d at 1485. “The question is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994) (quoting Weisberg III, 745 F.2d at 1485). Thus, to obtain summary judgment against a challenge to the adequacy of a search, the agency must show that there exists no genuine issue of material fact regarding whether “the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.Cir.1991). “Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them.” Id. “An agency may establish the adequacy of its search by submitting reasonably detailed, nonconclusory affidavits describing its efforts.” Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C.Cir.2006). Such affidavits should “denote which files were searched,” by whom those files were searched, and reflect a “systematic approach to document location.” Weisberg v. U.S. Dep’t of Justice (‘Weisberg I ”), 627 F.2d 365, 371 (D.C.Cir.1980). “A reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched, is necessary to afford a" }, { "docid": "5154378", "title": "", "text": "Office of Information Policy). 2. The defendant agencies performed adequate searches. Plaintiff next asserts that defendants did not perform adequate searches for records responsive to his request. To prevail in a FOIA case, the agency must demonstrate that it has made “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C.Cir.1990). “[A]t the summary judgment phase, an agency must set forth sufficient information in'its affidavits for a court to determine if the search was adequate.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995), citing Oglesby, 920 F.2d at 68. Such agency affidavits attesting to a reasonable search “are afforded a presumption of good faith,” Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F.Supp.2d 1, 8 (D.D.C.2004), and “can be rebutted only ‘with evidence that the agency’s search was not made in good faith.’ ” Id., quoting Trans Union LLC v. Fed. Trade Comm’n, 141 F.Supp.2d 62, 69 (D.D.C.2001). To show that the CRM and the EOUSA performed adequate searches for' information responsive to plaintiffs requests, defendants have submitted declarations by John Cunningham III — a Trial Attorney in the CRM currently assigned to the FOIA and Privacy Act Unit, Cunningham Decl. ¶ 1;' and David Luczynski. The Cunningham declaration states that the CRM searched its central index of records, “which is the most comprehensive system of records maintained by the Division and contains information about people referred to in potential/actual cases and other matters of concern to the Criminal Division.” Cunningham Decl. ¶ 10. It used plaintiffs name as a search term, as well as the names of the co-defendants in his criminal case. Id.; see also Ex. 8 to Cunningham Decl. In addition, since plaintiff had indicated in his submission of materials to the CRM that the sections of the CRM that he reasonably believed may contain responsive records were the Child Exploitation and Obscenity Section, the Narcotics and Dangerous Drugs Section, and the FOIA and Privacy Act" }, { "docid": "16149787", "title": "", "text": "information requested.” Oglesby, 920 F.2d at 68. To demonstrate that it has performed an adequate search for respon- sive documents, an agency must submit a reasonably detailed affidavit describing the search. Id. (finding summary judgment improper where agency’s affidavit lacked sufficient detail); see also Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 91 (D.D.C. 2009) (same). An affidavit is “reasonably detailed” if it “set[s] forth the search terms and the type of search performed, and averts] that all files likely to contain responsive materials, (if such records exist) were searched.” Oglesby, 920 F.2d at 68; see also Defs. of Wildlife, 623 F.Supp.2d at 92 (finding declaration deficient where it failed to detail the types of files searched, the filing methods, and the search terms used). However, agency affidavits that “do not denote which files were searched, or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to enable [the requester] to challenge the procedures utilized” are insufficient to support summary judgment. Weisberg v. Dep’t of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980). Moreover, conclusory assertions about the agency’s thoroughness are insufficient. Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1121 (D.C. Cir. 2007); Nat'l Sec. Counselors v. Cent. Intelligence Agency, 849 F.Supp.2d 6, 11 (D.D.C. 2012) (“The affidavit must explain the scope and method of the agency’s search in a non-conclusory fashion.”) (internal quotation marks omitted). “Agency affidavits are accorded a presumption of good faith,” Safecard Servs., Inc., 926 F.2d at 1200, which can be rebutted with “evidence of agency bad faith,” Military Audit Project, 656 F.2d at 738, or when “a review of the record raises substantial doubt” that certain materials were overlooked despite well-defined requests. Valencia-Lucena, 180 F.3d at 326, citing Founding Church of Scientology, 610 F.2d at 837; see also Truitt, 897 F.2d at 542 (“If, however, the record leaves substantial doubt as to the sufficiency of the search, summaiy judgment for the agency is not proper.”). While defendant agencies have submitted declarations in an attempt to meet their burden with regard to the adequacy" }, { "docid": "1057500", "title": "", "text": "within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). An agency must prove that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act’s inspection requirements.” Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir.1978) (internal citation and quotation omitted). Review of the agency’s denial of a FOIA request is de novo, and the agency “bears the burden of establishing the applicability of the claimed exemption.” Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.Cir.2003). II. Adequacy A. Search of FWS Leadership Offices Having resolved all disputes regarding defendants’ initial nondisclosure of documents based on various FOIA exemptions, the parties have now narrowed their dispute to only the issue of the adequacy of the government’s search. Summary judgment should be issued in favor of the government where the agency can show “that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 68 (D.C.Cir.1990). See also Weisberg v. United States Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983). “[T]he competence of any records-search is a matter dependent upon the circumstances of the case.” Founding Church of Scientology of Wash., D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 834 (D.C.Cir.1979). Thus, in response to a challenge to the adequacy of its search, the agency must provide a “reasonably detailed affidavit, setting forth the search terms and type of search performed, and averring that all files likely to contain responsive materials ... were searched.” Oglesby, 920 F.2d at 68. The agency need not “set forth with meticulous documentation the details of an epic search for the requested records,” Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982) (“in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and" }, { "docid": "476705", "title": "", "text": "months after IDA had initiated this action and one year after IDA submitted its FOIA request.”). The United States Court of Appeals for the District of Columbia has held that [a] response is sufficient for purposes of requiring an administrative appeal if it includes: the agency’s determination of whether or not to comply with the request; the reasons for its decision; and notice of the right of the requester to appeal to the head of the agency if the initial agency decision is adverse. Assuming an agency’s initial response complies with these requirements, the FOIA requester must appeal to the head of the agency. Oglesby, 920 F.2d at 65 (internal citations omitted). Defendants’ responses prior to Plaintiffs filing suit neither constituted an actual agency decision with respect to the entire request, nor did they notify Plaintiff of its right to appeal. Accordingly, no administrative appeal was required. B. Defendants Have Not Met the Standard for Summary Judgment By Conducting An Adequate Document Search In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby, 920 F.2d at 68. To obtain summary judgment on the issue of the adequacy of the records search, “the agency must show, viewing the facts in the light most favorable to the requester, that ... ‘[it] has conducted a “search reasonably calculated to uncover relevant documents.” ’ ” Steinberg v. Dep’t. of Justice, 23 F.3d 548, 551 (D.C.Cir.1994) (quoting Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984)). To meet its burden, the agency may submit affidavits or declarations that explain both in reasonable detail and in a non-conclusory fashion the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. An agency must demonstrate that it made a “good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68. See Campbell v. U.S." }, { "docid": "7574225", "title": "", "text": "Weisberg v. Department of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983)). “[T]he agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 68 (D.C.Cir.1990) (“Oglesby I”). The agency “cannot limit its search” to only one or more places if there are additional sources “that are likely to turn up the information requested.” Id) see also Campbell, 164 F.3d at 28. A requester dissatisfied with the agency’s response that no records have been found may challenge the adequacy of the agency’s search by filing a lawsuit in the district court after exhausting any administrative remedies. See 5 U.S.C. § 552(a)(6)(A)(i) & (C); Oglesby I, 920 F.2d at 67. At the summary judgment stage, where the agency has the burden to show that it acted in accordance with the statute, the court may rely on “[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Oglesby I, 920 F.2d at 68; see also Kowalczyk v. Department of Justice, 73 F.3d 386, 388 (D.C.Cir.1996); Weisberg, 705 F.2d at 1351. However, if a review of the record raises substantial doubt, particularly in view of “well defined requests and positive indications of overlooked materials,” Founding Church of Scientology v. National Sec. Agency, 610 F.2d 824, 837 (D.C.Cir.1979), summary judgment is inappropriate. Id.) see also Oglesby v. United States Dep’t of the Army, 79 F.3d 1172, 1185 (D.C.Cir.1996) (“Oglesby II”); Krikorian v. Department of State, 984 F.2d 461, 468 (D.C.Cir.1993); Weisberg v. United States Dep’t of Justice, 627 F.2d 365, 369-70 (D.C.Cir.1980). Most recently, for example, in Campbell, 164 F.3d at 28, the court held a search inadequate when it was evident from the agency’s disclosed records that a search of another of its records system might uncover the documents sought. So too here, on de novo review, see Nation Magazine v. United States Customs" }, { "docid": "9229117", "title": "", "text": "a failed hard drive. Siehndel Decl. ¶ 28. The agency came up with about 70 additional pages. Id. at ¶ 30. All told, USPTO's three searches generated 164 pages of emails. Siehndel Decl. ¶ 31. The agency released 116 pages in full and, relying on Exemption 5, it withheld five pages in their entirety and redacted information from 43. Id.; see also id. Ex. A (Vaughn index). The parties have now both moved for summary judgment, and those motions are ripe for review. II. Standard of Review FOIA requires federal agencies to produce their records upon request unless one of the statute's nine exemptions applies. See 5 U.S.C. § 552(b). Disputes about the adequacy of an agency's search for documents or about the invocation of FOIA exemptions are properly decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011) ; Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Summary judgment is appropriate when the pleadings and record show \"that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.\" Fed. R. Civ. P. 56(c). In the FOIA context, \"summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.\" Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). III. Analysis Again, Lantz contends that USPTO's search was inadequate and that its reliance on Exemption 5 was improper. The Court takes (and rejects) these contentions in turn. A. Adequacy of the Search To establish the adequacy of a search, an agency \"must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.\" Oglesby, 920 F.2d at 68 (D.C. Cir. 1990). Affidavits or declarations that \"adequately describe" }, { "docid": "12150767", "title": "", "text": "however, is that an agency shall disclose such records that would be required to be disclosed pursuant to FOIA. 5 U.S.C. § 552a(b)(2). In actions seeking documents under both FOIA and the Privacy Act, a defendant agency must show that the information is properly subject to both FOIA and Privacy Act exemptions. See Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.Cir.1987). Ill: DISCUSSION As with the Background section, in the interest of organizational clarity, the Court shall discuss each relevant agency’s response to Plaintiffs FOIA/PA request in turn. A The Defense Intelligence Agency 1. The DIA Has Met the Standard for Summary Judgment By Conducting An Adequate Search for Records In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby v. Army, 920 F.2d 57, 68 (D.C.Cir.1990). To obtain summary judgment on the issue of the adequacy of the records search, an agency must show “viewing the facts in the light most favorable to the requester, that ... [it] has conducted a ‘search reasonably calculated to uncover relevant documents.’ ” Steinberg, 23 F.3d at 551 (quoting Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C.Cir.1984)). To meet its burden, the agency may submit affidavits or declarations that explain both in reasonable detail and in a non-conclusory fashion the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. An agency must show that it made a “good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68; see Campbell v. DOJ, 164 F.3d 20, 27 (D.C.Cir.1998). An agency’s search need not be exhaustive, merely reasonable. See W. Ctr. for Journalism v. Internal Revenue Serv., 116 F.Supp.2d 1, 8 (D.D.C.2000) (citing Shaw v. State Dep’t, 559 F.Supp. 1058, 1057 (D.D.C.1983)). As discussed above, Mr. Kinsey’s Declaration describes in non-conclusory terms the efforts the DIA undertook in searching" }, { "docid": "11620021", "title": "", "text": "declarations are accorded “a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Id. (internal citation and quotation omitted). An agency must demonstrate that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act’s inspection requirements.” Goland v. CIA 607 F.2d 339, 352 (D.C.Cir.1978)(internal citation and quotation omitted). Discussion Adequacy of the Agency Search In order to obtain summary judgment on the issue of the adequacy of a FOIA search, an agency must show, “viewing the facts in the light most favorable to the requester, that ... [it] ‘has conducted a search reasonably calculated to uncover all relevant documents.’ ” Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 552 (D.C.Cir.1994) (quoting Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984)). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail and in a non-conclusory fashion the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. The agency must show that it made a “good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C.Cir.1990); see Campbell v. United States Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998). In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby, 920 F.2d at 68. The search here was adequate. The BOP records all calls on the Inmate Telephone System (“ITS”) and as a general rule maintains the recorded conversations for 180 days. Kosiak Deck, ¶ 5. The BOP does not transcribe the conversations. Id., ¶ 7. The calls requested by plaintiff were recorded in an electronic digital audio format. Id., ¶ 18 n. 2. In response to a FOIA" }, { "docid": "14947245", "title": "", "text": "adequacy of its records search. See Becker v. IRS, 34 F.3d 398, 405 (7th Cir.1994); Steinberg v. DOJ, 23 F.3d 548, 551 (D.C.Cir.1994). To demonstrate that its search was adequate, “the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C.Cir. 1990). In other words, the search must have been a good faith effort and reasonable in light of the request. Good faith is presumed, see SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991), and it can be bolstered by evidence of the agency’s efforts to satisfy the request. Reasonableness is a flexible and context-dependent standard. See Davis v. DOJ, 460 F.3d 92, 103 (D.C.Cir.2006) (“[T]he adequacy of an agency’s search is measured by a standard of reasonableness, and is dependent upon the circumstances of the case.”) (internal quotation marks omitted). Evidence that a search was reasonable and conducted in good faith generally comes in the form of “reasonably detailed nonconelusory affidavits submitted in good faith.” Matter of Wade, 969 F.2d 241, 249 n. 11 (7th Cir.1992). The affidavit requirement is important because [a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all flies likely to contain responsive materials (if such records exist) were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment. Oglesby, 920 F.2d at 68. In response to an agency affidavit, the FOIA requester can present “‘countervailing evidence’ as to the adequacy of the agency’s search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 314 (D.C.Cir.2003). Once both parties have made their case, “if a review of the record raises substantial doubt [about the adequacy of the search], particularly in view of well defined requests and positive indications of overlooked materials, summary judgment [in favor of the agency]" }, { "docid": "9068166", "title": "", "text": "resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate .\" Weisberg v. U.S. Dep't of Justice , 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original). In this regard, \"[t]here is no requirement that an agency search every record system,\" although \"the agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested.\" Oglesby v. U.S. Dep't of Army , 920 F.2d 57, 68 (D.C. Cir. 1990). Further, agencies are not obligated to search \"beyond 'the four corners of the request,' nor are they 'required to divine a requester's intent.' \" Am. Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs. , 922 F.Supp.2d 56, 62 (D.D.C. 2013) (quoting Landmark Legal Found. v. EPA , 272 F.Supp.2d 59, 64 (D.D.C. 2003) ); see also Kowalczyk v. Dep't of Justice , 73 F.3d 386, 389 (D.C. Cir. 1996). At the summary judgment stage, an agency meets its burden of demonstrating beyond material doubt that it \"made a 'good faith effort to conduct a search using methods which can be reasonably expected to produce the information requested,' \" DiBacco , 795 F.3d at 188 (alterations adopted) (quoting Oglesby , 920 F.2d at 68 ), by submitting to the court a \"reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched,\" Ancient Coin Collectors Guild , 641 F.3d at 514 (quoting Valencia-Lucena v. U.S. Coast Guard , 180 F.3d 321, 326 (D.C. Cir. 1999) ). Agency affidavits or declarations explaining search scope and methodology are \"accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.\" SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted); Chambers v. U.S. Dep't of Interior , 568 F.3d 998, 1003 (D.C. Cir. 2009) (recognizing substantial weight traditionally" } ]

[ { "docid": "22934015", "title": "", "text": "arisen, there is no room for quasi contract.” A.L. Corbin, Corbin on Contracts § 1.20 (J.M. Perillo ed., rev’d ed.1993). The district court’s reliance on the doctrine of quantum meruit led it to overlook questions of law and fact common to all class members. As plaintiffs’ brief says, “The plaintiffs’ claims are based entirely on a standard form contract which the defendant used with every member of the class.” The common factual basis is found in the terms of the contract, which are identical for all class members. The common question of law is whether those terms precluded defendant from charging for incoming calls. Cellular One’s waiver defense is also common to the class. “[Affirmative defenses should be considered in making class certification decisions.” Mowbray, 208 F.3d at 295. Again, both the factual basis for and the legal defense of waiver present common issues for all class members. All class members received a user guide and monthly invoices showing that defendant charged the class members for the incoming calls. Even in the unlikely event that individual waiver determinations prove necessary, the proposed class may still satisfy the predominance requirement. See id. at 296. Courts traditionally have been reluctant to deny class action status under Rule 23(b)(3) simply because affirmative defenses may be available against individual members. E.g., 6A Fed. Proc., L.Ed. § 12:248, Defenses to Individual Members’ Claims (2002) (citing cases); 32B Am. Jur.2d Federal Courts § 2018 & n. 1 (2002) (citing cases); see, e.g., Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 924 (3d Cir.1992) (“Given a sufficient nucleus of common questions, the presence of the individual issue of compliance with the statute of limitations has not prevented certification of class actions in securities cases.”) (internal quotation omitted); Cameron v. E.M. Adams & Co., 547 F.2d 473, 478 (9th Cir.1976) (same). See generally Mowbray, 208 F.3d at 295 (identifying statute of limitations as an affirmative defense). Instead, where common issues otherwise predominated, courts have usually certified Rule 23(b)(3) classes even though individual issues were present in one or more affirmative defenses. See, e.g., In re Visa Check/MasterMoney" } ]

[ { "docid": "2196457", "title": "", "text": "the specific conflicts of interest itemized in the Amended Complaint. The existence of this affirmative defense does not suggest that a class should not be certified in this case. Although affirmative defenses such as the statute of limitations defense may be considered as one factor in the class certification calculus, the existence of even a meritorious statute of limitations defense does not necessarily defeat certification. As the First Circuit explained in one of the cases upon which the SSB Defendants rely, Waste Management Holdings, Inc. v. Mowbray, 208 F.3d 288 (1st Cir.2000), although the existence of an affirmative statute of limitations defense should be considered in assessing class certification, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3). Id. at 296. The First Circuit affirmed the certification of the class, finding that common issues predominated despite the possibility of statute of limitations defenses. Id. As in Waste Management, despite the possible presence of statute of limitations defenses, class members in the Securities Litigation are bound by a “constellation of common issues” that predominate over any individual questions. (3) Superiority of Class Action Rule 23(b)(3) requires plaintiffs to demonstrate that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Rule 23(b)(3), Fed.R.Civ.P. The factors that are relevant to an analysis of the superiority of the class action device include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Rule 23(b)(3), Fed.R.Civ.P. This is" }, { "docid": "4579507", "title": "", "text": "131. At “the heart of defendants’ predominance argument” was their contention that individual damage questions would predominate over common issues. Id. at 138. The Visa Check Court noted that the fact that a defense “may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones.” Id. (quoting Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000)). The Second Circuit reminded district courts that “[cjommon issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues.” Id at 139. The Court found that the defendants’ mitigation defense related to individual damage calculations only, and did not negate the fact that there was “a sufficient constellation of common issues bind[ing] the class members together.” Id. at 138 (citing Waste Mgmt., 208 F.3d at 296). Of course, the facts of this case differ from those in Visa Check in significant ways. In Visa Check, plaintiffs presented expert economic evidence establishing a formula for damages in order to overcome defendants’ objection that each class member’s damage claim was unique. Id. at 138-40. In contrast, in this case each plaintiff has a unique situation with relation to damages issues. This is not a business or other financial claim where a mechanical application of economic or accounting theories will result in an appropriate damage figure. Furthermore, in Visa Check, class membership was easily established — because the businesses who accepted Visa and MasterCard credit cards could readily be identified. Here, the mere fact that an individual was strip searched will not place him in the class. An across-the-board policy of strip searching, as deplorable as it may be, does not render every search that a police department con ducts unconstitutional. If there was “reasonable suspicion” to believe that a detainee was concealing a weapon or contraband, a strip search may have been constitutional. Thus, the circumstances of each putative class member’s arrest would have to be evaluated in order to determine who is and who is not a member of the class. See Noon" }, { "docid": "16993399", "title": "", "text": "search); Visa Check, 280 F.3d at 137-39 (holding that defense that individual plaintiffs may have mitigated damages by urging customers to use forms of payment other than defendants’ cards did not cause individual issues to predominate). In eases involving fraudulent statements or misrepresentations, courts generally favor certification where the misrepresentations were materially uniform, but deny certification where they varied from transaction to transaction. See Moore v. PaineWebber, Inc., 306 F.3d 1247, 1253-56 (2d Cir.2002) (stating that Third, Fourth, Fifth, Sixth, and Seventh Circuits follow this approach, with some variation); In re LifeUSA Holding, Inc., 242 F.3d 136, 145-46 (3d Cir.2001) (de-certifying class because the “plaintiffs assert claims arising not out of one single event or misrepresentation, but claims allegedly made to over 280,000 purchasers by over 30,000 independent agents where the District Court found that the sales presentations (hence the alleged misrepresentations) were neither uniform nor scripted”). Defendants have spent little time challenging the predominance of factual issues with respect to consumers who co-pay for physician-administered drugs under Medicare Part B. Here, common factual issues predominate since a typical consumer by statute simply pays a percentage of AWP as a copay. There is therefore no separate factual issue regarding the knowledge and reliance of each class member. Defendants’ primary challenge to the physician-administered drug class centers on the fact that each state consumer protection law has different legal standards. Differences in legal issues do not necessarily preclude class certification under Rule 23(b)(3). “As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of [law] will not automatically foreclose class certification under Rule 23(b)(3).” Mowbray, 208 F.3d at 296; see also Hanlon, 150 F.3d at 1022-23 (holding that “the idiosyncratic differences between state consumer protection laws [were] not sufficiently substantive to predominate over the shared claims”). However, “[i]n a multi-state class action, variations in state law may swamp any common issues and defeat predominance.” Klay v. Humana, Inc., 382 F.3d 1241, 1261 (11th Cir.2004); see also Amchem, 521 U.S. at 624, 117 S.Ct. 2231 (observing that “[d]ifferences in state law ... compound" }, { "docid": "14941757", "title": "", "text": "in a case challenging a blanket strip-search policy. Although some plaintiffs may have been searched based on reasonable suspicion, thereby creating a defense to liability with respect to those plaintiffs, we concluded that “[i]n light of the pervasive character of the common liability issues and the admittedly de minimis nature of individualized liability issues, ... the District Court erred by holding that individual liability issues predominated over common ones.” Id. at 230. The City Defendants argue that the district court erroneously relied upon In re Nassau County Strip Search Cases despite the fact that the individualized inquiries that will be required in this case are not de minimis. But we do not read the district court’s opinion to suggest that the City Defendants’ probable cause defense affected only a de minimis portion of the plaintiffs. The court’s analysis centered instead on its view that despite the existence of individual issues in this action, the common issues were “so pronounced and pervasive [that] they overwhelmingly outweigh the more narrow inquiries that may be required to resolve a subset of certain Fourth Amendment claims.” Brown v. Kelly, 244 F.R.D. at 238. This was not an abuse of discretion. We think that the City Defendants also overstate the scope of In re Nassau County Strip Search Cases. It does not stand for the proposition that any individualized liability issues must be de minimis in order for Rule 23(b)(3) class certification to be permissible. Rather, we concluded that the district court acted outside of its discretion in denying class certification, in light of the fact that individualized liability issues were de minimis. Because we are “noticeably less deferential when the district court has denied class status than when it has certified a class,” In re Nassau County Strip Search Cases, 461 F.3d at 225 (internal quotation marks omitted), the decision does not establish the outer boundaries of the circumstances under which a district court may find that common issues predominate. Indeed, the decision itself proffers a much broader standard for finding predominance: “[Although ‘a defense may arise and may affect different class members differently," }, { "docid": "16185571", "title": "", "text": "claims and defenses in determining whether a putative class meets the requirements of Rule 23(b)(3), the fact that a defense “may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones.” See Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000). Rather, “[a]s long as a sufficient constellation of common issues binds class members together, variations in the sources and application of [a defense] will not automatically foreclose class certification under Rule 23(b)(3).” Id; accord Williams v. Sinclair, 529 F.2d 1383, 1388 (9th Cir.1975) (stating that the existence of a defense “does not compel a finding that individual issues predominate over common ones” when there is a “sufficient nucleus of common questions”). Therefore, the question for purposes of determining predominance is not whether a defense exists, but whether the common issues will predominate over the individual questions raised by that defense. Defendants’ mitigation defense goes only to the calculation of damages. In re Visa Check/MasterMoney Antitrust Litig., 192 F.R.D. at 86. The district court found that Carlton’s common formula for damages — that absent the tie, the interchange fees for off-line debit cards would have decreased, the interchange fees for credit cards would not have increased, and that an individual merchant’s damages could be calculated by comparing those fees with the interchange fees actually paid — was not fatally flawed. Id. at 74, 84-85. We have already stated that the district court’s determination did not constitute an abuse of its discretion. See supra Section III.B.; cf. Bogosian, 561 F.2d at 455 (stating that in proving injury and damages for an illegal tie, “plaintiffls] may recover the amount of the illegal overcharge” and “could prove fact of damage simply by proving that the free market prices would be lower than the prices paid and that [each plaintiff] made some purchases at the higher price”). Assuming arguendo that the mitigation defense is in-fact viable, the majority of the issues relating to this defense are common to the class, including, inter alia, whether defendants’ “honor all cards” rule allows steering" }, { "docid": "11360217", "title": "", "text": "in “that prior ruling.” TR at 25. The Court presumes he is referring to its ruling that for purposes of establishing scien-ter, Lead Plaintiff may rely on facts happening before the time bar. That proof issue is a separate matter and should not be the reason for defining a class period beyond the reach of the statute of limitations. Nevertheless, the claims against other Defendants were filed earlier and are not restricted by the same statute of repose. Regarding the commencement of the Class Period, the claims against the four Financial Defendants were added in the First Amended Consolidated Complaint (# 1388), deemed by the Court to have been filed on January 14, 2003, later than those against other Defendants, and are subject to different statutes of limitations/repose than others. The reach of the statute of limitations is a fact issue that should not be resolved at class certification. Other courts have viewed variation in time bars for different class claimants in a predominance analysis as a consideration, but not necessarily a controlling one. Wasie Management Holdings, Inc. v. Mowbray, 208 F.3d 288, 295-96 (1st Cir.2000) (“Although a necessity for an individualized statute-of-limitations determinations invariably weighs against class certification under Rule 23(b)(3), we reject any per se rule that treats the presence of such issues as an automatic disqualifier. In other words, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3).”). The Mowbray panel ruled that a court “must formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues will predominate” and thus, in part, whether class certification is appropriate. Id. at 298. See also In re WorldCom, Inc. Sec. Litig., 219 F.R.D. at 303 (“Although affirmative defenses such as the statute of limitations defense may be considered as one" }, { "docid": "23681585", "title": "", "text": "Instead, each member is a Direct or Indirect Purchaser, harmed by what De Beers did. These class members, moreover, possess a legally cognizable injury acknowledged in hornbook law, as their injuries are real, and stem not from simply feeling “wronged,” as the dissent suggests (Dissenting Op. at 343), but from De Beers’s alleged anti-competitive conduct, conduct which antitrust laws forbid. ii) Precedent Regarding Variations in State Law Furthermore, our precedent provides that “variations in the rights and remedies available to injured class members under the various laws of the fifty states [do] not defeat commonality and predominance.” Warfarin, 391 F.3d at 529 (quoting In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 315 (3d Cir.1998)). This is so because “ ‘a finding of commonality does not require that all class members share identical claims,’ ” and predominance is not considered deficient merely “because claims were subject to the [varying] laws of fifty states.” Id. “ ‘Predominance under Rule 23(b)(3) cannot be reduced to a mechanical, single-issue test’ rather, “ ‘[a]s long as a sufficient constellation of common issues binds class members together, variations in the sources and application’ ” of applicable laws will not foreclose class certification. Linerboard, 305 F.3d at 162-63 (quoting with approval Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000) (rejecting argument that variations in twenty states’ laws concerning reliance, waiver, and statutes of limitations defeated predominance)); see also Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir. 2003) (“Rule 23(b)(3) requires merely that common issues predominate, not that all issues be common to the class.”) (emphasis added). Thus, it is not surprising that we can find no support in our Court’s jurisprudence for the proposition that commonality and predominance are defeated merely because available rights and remedies differ under the several laws that form the basis for the class claims. We have never required the presentation of identical or uniform issues or claims as a prerequisite to certification of a class. Rather, our jurisprudence evinces a pragmatic response to certifications of common claims" }, { "docid": "6832906", "title": "", "text": "rationale in Broussard, the Court of Appeals for the First Circuit determined: Although a necessity for individualized statute-of-limitations determinations invariably weighs against class certification under Rule 23(b)(3), we reject any per se rule that treats the presence of such issues as an automatic disqualifier. In other words, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3). See 5 James Wm. Moore Et Al., Moore’s Federal Practice ¶ 23.46[3] (3d ed.1999). Predo minance under Rule 23(b)(3) cannot be reduced to a mechanical, single-issue test. Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000). We accept this reasoning as more persuasive than that espoused by the Court of Appeals for the Fourth Circuit in Broussard. Notwithstanding the individual determinations that will undoubtedly arise at trial, common issues of concealment predominate here because “the inquiry necessarily focuses on defendants’ conduct, that is, what defendants did rather than what plaintiffs did.” In re Flat Glass, 191 F.R.D. at 488. Key questions will not revolve around whether Appellees knew that the prices paid were higher than they should have been or whether Appellees knew of the alleged conspiracy among Appellants. Instead, the critical inquiry will be whether “defendants successfully concealed the existence of the alleged conspiracy, which proof will be common among the class members in each class.” Id. It is the fact of concealment that is the polestar in an analysis of fraudulent concealment. It is the camouflage that demands attention, the cover up, the acts of obscuring or masking. These allegations of proof are all common to the defendants, not the plaintiffs. It is not the conspiracy of the defendant that is relevant on the issue of tolling the statute of limitations, it is the act of concealing the conspiracy. C. Moreover, any individualized facts of fraudulent concealment may be" }, { "docid": "6832905", "title": "", "text": "limitations) may depend on facts peculiar to each plaintiffs case, class certification is erroneous.” Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 342 (4th Cir.1998) (alteration in original) (internal quotation marks omitted); see also, Chevalier v. Baird Sav. Ass’n, 72 F.R.D. 140 (E.D.Pa.1976); In re Anthracite Coal Antitrust Litig., 78 F.R.D. 709 (M.D.Pa.1978); Krehl v. Baskin-Robbins Ice Cream Co., 78 F.R.D. 108 (C.D.Cal.1978). They argue that a number of Appellees are barred from asserting a fraudulent concealment defense to the statute of limitations because they either had prior knowledge of the conspiracy, or did not act with the requisite due diligence, emphasizing that this sort of inquiry is highly personal and is susceptible only to individualized proof and, therefore, inappropriate for class treatment. To be sure, certain determinations involving the fraudulent concealment defense to the statute of limitations will require individualized proof, which might vary among the assorted Appellees. However, most courts have refused to deny class certification simply because there will be some individual questions raised during the proceedings. In rejecting the rationale in Broussard, the Court of Appeals for the First Circuit determined: Although a necessity for individualized statute-of-limitations determinations invariably weighs against class certification under Rule 23(b)(3), we reject any per se rule that treats the presence of such issues as an automatic disqualifier. In other words, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3). See 5 James Wm. Moore Et Al., Moore’s Federal Practice ¶ 23.46[3] (3d ed.1999). Predo minance under Rule 23(b)(3) cannot be reduced to a mechanical, single-issue test. Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000). We accept this reasoning as more persuasive than that espoused by the Court of Appeals for the Fourth Circuit in Broussard. Notwithstanding the individual determinations that will undoubtedly arise at" }, { "docid": "4579506", "title": "", "text": "concern that each plaintiff would have to present individualized proof of damages. He noted, however, that the court in Tyson v. City of New York was not as troubled by the damages question, because the court could seek the assistance of a magistrate judge or a special master if resolving individual damage issues became unmanageable. No. 97 CIV-3762 (S.D.N.Y. Mar. 18, 1998) (oral decision) (cited in Augustin, at * 11-12). Despite Judge Hurley’s well-reasoned opinion, Second Circuit cases decided after Augustin suggest that individual damage questions in this case do not automatically prevent class certification. In Visa Check, plaintiffs brought an action against Visa and MasterCard, alleging that the companies violated the antitrust laws by requiring stores to accept their debit cards if they accepted their credit cards. 280 F.3d 124. The Second Circuit affirmed the district court’s certification of a class of “all persons and business entities who have accepted Visa and/or MasterCard credit cards and therefore are required to accept Visa Check and/or Mast-erMoney debit cards under the challenged tying arrangements----” Id. at 131. At “the heart of defendants’ predominance argument” was their contention that individual damage questions would predominate over common issues. Id. at 138. The Visa Check Court noted that the fact that a defense “may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones.” Id. (quoting Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000)). The Second Circuit reminded district courts that “[cjommon issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues.” Id at 139. The Court found that the defendants’ mitigation defense related to individual damage calculations only, and did not negate the fact that there was “a sufficient constellation of common issues bind[ing] the class members together.” Id. at 138 (citing Waste Mgmt., 208 F.3d at 296). Of course, the facts of this case differ from those in Visa Check in significant ways. In Visa Check, plaintiffs presented expert economic evidence establishing a formula for damages in order" }, { "docid": "23681586", "title": "", "text": "long as a sufficient constellation of common issues binds class members together, variations in the sources and application’ ” of applicable laws will not foreclose class certification. Linerboard, 305 F.3d at 162-63 (quoting with approval Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000) (rejecting argument that variations in twenty states’ laws concerning reliance, waiver, and statutes of limitations defeated predominance)); see also Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir. 2003) (“Rule 23(b)(3) requires merely that common issues predominate, not that all issues be common to the class.”) (emphasis added). Thus, it is not surprising that we can find no support in our Court’s jurisprudence for the proposition that commonality and predominance are defeated merely because available rights and remedies differ under the several laws that form the basis for the class claims. We have never required the presentation of identical or uniform issues or claims as a prerequisite to certification of a class. Rather, our jurisprudence evinces a pragmatic response to certifications of common claims arising under varying state laws. In Prudential, we addressed the certification of a settlement class arising under federal securities law and varying state law formulations of common law fraud, breach of contract, bad faith, negligent misrepresentation, negligence, unjust enrichment, and breach of state consumer fraud statutes. 148 F.3d at 315. We emphasized our willingness to certify nationwide classes where differences in state law fell “into a limited number of predictable patterns,” and any deviations “could be overcome at trial by grouping similar state laws together and applying them as a unit.” Id. As such, we affirmed the district court’s decision to subsume the rela tively minor differences in state law within a single class. Id,; see also Ins. Broker., 579 F.3d at 271 (noting that “subclasses are appropriate ‘where a class is found to include subclasses divergent in interest’ ”) (citation & alteration omitted). Similarly, in GM Truck, we approved the certification of nationwide (b)(3) litigation classes where “the laws of the 50 states could be reduced to [several] general patterns, providing the framework for" }, { "docid": "2944352", "title": "", "text": "not show on an individual basis “reliance” as to Section 349 claims and resulting injury and noting “[t]he predominance of questions of fact or law over questions affecting only individual members is the test which must be met, not a nice inspection of the claims of each class member”) (citation omitted). Therefore, the common legal and factual issues in the Section 349 claim predominate. (2) The Voluntary Payment Doctrine Defendant also argues that class certification is not appropriate because the “voluntary payment doctrine” would bar recovery for any class member who, after learning of Costco’s Renewal Policy, continued to renew late in any subsequent year and, thus, individualized assessment of this issue as to each plaintiff must be made. As set forth below, although defendant contends that the voluntary payment issue precludes a conclusion that questions of law or fact predominate in this case, the Court disagrees. As the Second Circuit held, “[although a court must examine the relevant facts and both the claims and defenses in determining whether a putative class meets the requirements of Rule 23(b)(3), the fact that a defense may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones.” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 139 (internal quotations omitted); accord Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000). “[A]s long as a sufficient constellation of common issues binds class members together, variations in the sources and application of [a defense] will not automatically foreclose class certification under Rule 23(b)(3).” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 139; accord Williams v. Sinclair, 529 F.2d 1383, 1388 (9th Cir.1975) (stating that the existence of a defense “does not compel a finding that individual issues predominate over common ones” when there is a “sufficient nucleus of common questions”). Moreover, although some courts have denied class certification based upon individualized issues created by disputes about the application of the voluntary payment doctrine to particular plaintiffs, the Court does not view this issue as a barrier to class certification under the" }, { "docid": "8638480", "title": "", "text": "the date on which the statute of limitations accrued; and (ii) the date on which the action was filed. Fact (ii) is a common issue in virtually every class action, because the entire class gets credit for the filing date of the class action complaint. Fact (i) may not be truly common, but it might be, if, for example, the discovery rule delays accrual of a statute of limitations until the cause of action is discovered, and all class members’ causes of action are discovered at the same time, or if a single act by the defendant breached contracts with all class members at once. Even if the question is individual—for example, if a class is defined as only encompassing preexisting filed claims, or if the discovery rule might delay the accrual of the statute for some class members but not others—it still typically does not defeat predominance. Although a necessity for individualized statute-of-limitations determinations invariably weighs against class certification under Rule 23(b)(3), we reject any per se rule that treats the presence of such issues as an automatic disqualifier. In other words, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3). Predominance under Rule 23(b)(3) cannot be reduced to a mechanical, single-issue test. Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000)(citing 5 James Wm. Moore et al., Moore's Federal Practice ¶ 23.46[3] (3d ed.1999)). See Newberg § 4:57 (confirming that the above passage \"reflects the law in most circuits” (footnote omitted)). . The advisory committee’s notes to rule 23 state that a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of the damages suffered by individuals within the" }, { "docid": "20398421", "title": "", "text": "that “with respect to regulating or affecting conduct within its borders, the place of the wrong has the predominant interest”). The impropriety of applying California law to a three-state class does not end the inquiry, however. Courts discussing conflict of laws in analyzing predominance have noted that while such variations must be considered, they will not necessarily defeat predominance. See Cameron v. E.M. Adams & Co., 547 F.2d 473, 478 (9th Cir.1976) (“The existence of a statute of limitations issue does not compel a finding that individual issues predominate over common ones. Given a sufficient nucleus of common questions, the presence of the individual issue of compliance with the statute of limitations has not prevented certification of class actions in securities eases”); see also Waste Management Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000) (“Although a necessity for individualized statute-of-limitations determinations invariably weighs against class certification under Rule 23(b)(3), we reject any per se rule that treats the presence of such issues as an automatic disqualifier. In other words, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3)”). While not always the case, the court believes here that creating a single UCL/CLRA class would create fairness issues that could be avoided by certifying a consumer protection class, with three subclasses: (1) a California UCL/CLRA class; (2) a New York General Business Law § 349 class; and (3) a Florida Deceptive and Unfair Trade Practices Act class. Consequently, pursuant to plaintiffs alternative request, the court will certify a consumer protection class with the three subclasses noted, as it concludes predominance can in this manner be assured. (2) The Express Warranty Class Plaintiffs also seek to certify an express warranty class comprised of residents of Cal ifornia, New York and North Carolina. The parties raise three issues regarding potential differences" }, { "docid": "2196456", "title": "", "text": "the damage issues will predominate over the common issues or that the WorldCom investors should be denied the benefits of the class action vehicle. There are several management tools that a court may use “to address any individualized damages issues that might arise.” In re Visa Check/MasterMo-ney, 280 F.3d at 141 (listing possible management tools). (f) Statute of Limitations Defense The SSB Defendants contend that the affirmative defense based on the statute of limitations, specifically, the one year period that governs when an investor has actual notice of the fraud alleged in a complaint, will require an individual inquiry into the knowledge of each putative class member. See 15 U.S.C. § 78i(e). There is, of course, no reason to believe that any investor learned of WorldCom’s accounting fraud before it was publicly disclosed. The SSB Defendants themselves take the position that they, despite their close relationship to WorldCom, remained in ignorance of the fraud. Similarly, they have not suggested how the public would have learned during the Class Period of the nature and extent of the specific conflicts of interest itemized in the Amended Complaint. The existence of this affirmative defense does not suggest that a class should not be certified in this case. Although affirmative defenses such as the statute of limitations defense may be considered as one factor in the class certification calculus, the existence of even a meritorious statute of limitations defense does not necessarily defeat certification. As the First Circuit explained in one of the cases upon which the SSB Defendants rely, Waste Management Holdings, Inc. v. Mowbray, 208 F.3d 288 (1st Cir.2000), although the existence of an affirmative statute of limitations defense should be considered in assessing class certification, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3). Id. at 296. The First Circuit affirmed" }, { "docid": "11360218", "title": "", "text": "Management Holdings, Inc. v. Mowbray, 208 F.3d 288, 295-96 (1st Cir.2000) (“Although a necessity for an individualized statute-of-limitations determinations invariably weighs against class certification under Rule 23(b)(3), we reject any per se rule that treats the presence of such issues as an automatic disqualifier. In other words, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3).”). The Mowbray panel ruled that a court “must formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues will predominate” and thus, in part, whether class certification is appropriate. Id. at 298. See also In re WorldCom, Inc. Sec. Litig., 219 F.R.D. at 303 (“Although affirmative defenses such as the statute of limitations defense may be considered as one factor in the class certification calculus, the existence of even a meritorious statute of limitations defense does not necessarily defeat certification.”) (citing Mowbray); George Lussier Enterprises, Inc. v. Subaru of New England, Inc., No. Civ. 99-109-B, 2001 WL 920060, *3, 6, 11 (D.N.H. Aug.3, 2001) (“No precise, mechanical test exists to determine whether common issues predominate in a proposed class.... Instead courts look for ‘a sufficient constellation of common issues [that] binds class members together.’ ”) (citing Mow-bray); CV Reit, Inc. v. Levy, 144 F.R.D. 690, 699 (S.D.Fla.1992); Gruber v. Price Waterhouse, 117 F.R.D. 75, 78-80 (E.D.Pa.1987); 7 Alba Conte and Herbert B. Newberg, Newberg On Class Actions § 22:55 (4th ed. updated Nov. 2005) (“Possible differences in the application of a statute of limitations to individual class members, including named plaintiffs, relate to the merits of individual claims and do not preclude certification of a Rule 23(b)(3) class action when the necessary commonality and predominance are otherwise present.”). But see Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 342 (4th Cir.1998) (“when" }, { "docid": "23637598", "title": "", "text": "misdemeanors or non-criminal offenses in Nassau County who thereafter were strip-searched at the NCCC pursuant to defendants’ blanket policy, practice and custom which required that all arrestees be strip-searched upon admission to the facility ....” (alterations incorporated). As noted, that definition obviated the need for individualized proceedings to determine class membership. The definition referenced only defendants’ “blanket policy,” thus avoiding questions of probable cause and excluding individuals strip searched after the policy’s cessation. Since defendants possess records of misdemeanor detainees strip searched during the policy period, determining class membership would be simple. In re Visa Check, 280 F.3d at 142 (approving class certification where “class members ... can be identified by defendants’ own records”). The class definition also implicated two broad common liability issues: whether the blanket policy existed and whether defendants are liable for its implementa tion. The only countervailing, individualized liability issue was whether, regardless of the policy, some plaintiffs were strip searched based upon “reasonable and contemporaneously held suspicion.” The existence of this defense does “not ... foreclose class certification.” Id. at 138 (internal quotation marks omitted). Further, as the District Court recognized, “any such ‘reasonable suspicion inquiries’ will be de minimis”; indeed, defendants set forth that “such an inquiry will only be sought regarding a limited number of plaintiffs.” In light of the pervasive character of the common liability issues and the admittedly de minimis nature of individualized liability issues, we conclude that the District Court erred by holding that individual liability issues predominated over common ones in its decisions dated September 23, 2003, and November 7, 2003. D. The District Court Erred in Concluding that the Class Action Device Is Not a Superior Litigation Mechanism For Rule 23(b)(3) certification to be proper, a class action also must be the most “fair and efficient” method of resolving this case. See Fed.R.Civ.P. 23(b)(3). In analyzing that question, courts must consider four nonexclusive factors: (1) the interest of the class members in maintaining separate actions; (2) “the extent and nature of any litigation concerning the controversy already commenced by or against members of the class”; (3) “the desirability" }, { "docid": "16185570", "title": "", "text": "to Carlton’s theory, injury and causation is present for every putative class member.” Id. at 86. The court observed, however, that if defendants “repackaged” their steering argument “as one addressing mitigation of damages,” rather than causation, it “may ... have force.” Id. Therefore, the court concluded that causation also could be proven on a class-wide basis. Defendants’ arguments on appeal regarding the district court’s finding that the existence of injury and causation can be established by class-wide proof appear merely to rehash their many criticisms of Carlton’s theory. Because we find that the district court’s resolution of these issues did not constitute an abuse of its discretion, see supra Section III.B., we affirm the district court’s determination that the existence of injury and causation can be proven on a class-wide basis. 4. Damages The heart of defendants’ predominance argument is that the common issues in this action do not predominate over the individual damages questions, primarily the defense of mitigation of damages by steering. Although a court must examine the relevant facts and both the claims and defenses in determining whether a putative class meets the requirements of Rule 23(b)(3), the fact that a defense “may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones.” See Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000). Rather, “[a]s long as a sufficient constellation of common issues binds class members together, variations in the sources and application of [a defense] will not automatically foreclose class certification under Rule 23(b)(3).” Id; accord Williams v. Sinclair, 529 F.2d 1383, 1388 (9th Cir.1975) (stating that the existence of a defense “does not compel a finding that individual issues predominate over common ones” when there is a “sufficient nucleus of common questions”). Therefore, the question for purposes of determining predominance is not whether a defense exists, but whether the common issues will predominate over the individual questions raised by that defense. Defendants’ mitigation defense goes only to the calculation of damages. In re Visa Check/MasterMoney Antitrust Litig., 192 F.R.D. at 86. The" }, { "docid": "2944353", "title": "", "text": "of Rule 23(b)(3), the fact that a defense may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones.” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 139 (internal quotations omitted); accord Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000). “[A]s long as a sufficient constellation of common issues binds class members together, variations in the sources and application of [a defense] will not automatically foreclose class certification under Rule 23(b)(3).” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 139; accord Williams v. Sinclair, 529 F.2d 1383, 1388 (9th Cir.1975) (stating that the existence of a defense “does not compel a finding that individual issues predominate over common ones” when there is a “sufficient nucleus of common questions”). Moreover, although some courts have denied class certification based upon individualized issues created by disputes about the application of the voluntary payment doctrine to particular plaintiffs, the Court does not view this issue as a barrier to class certification under the particular circumstances of this case. It is not the law that any time a voluntary payment doctrine issue is raised that certification must be denied. Such an absolute rule would bar almost all class actions involving alleged non-disclosures (even in standard form contracts) because there is always the possibility that a particular plaintiff, despite a nondisclosure by the defendant, somehow stumbled upon the nondisclosed fact at issue on his or her own and continued to make payments. Instead, the court must examine in each particular case how the voluntary payment doctrine issue may impact the common issues of law and fact. Here, as discussed supra, it appears that defendant may be trying to apply the voluntary payment doctrine broadly to any class member who had multiple renewals after expiration of the membership. Therefore, even if the doctrine applied, no complex, individualized assessment is required as to those members. See, e.g., Miller v. Optimum Choice, Inc., No. DKC 2003-3653, 2006 WL 2130640, at *7 (D.Md. July 28, 2006) (“Because the affirmative defenses are common across the" }, { "docid": "8638481", "title": "", "text": "issues as an automatic disqualifier. In other words, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3). Predominance under Rule 23(b)(3) cannot be reduced to a mechanical, single-issue test. Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000)(citing 5 James Wm. Moore et al., Moore's Federal Practice ¶ 23.46[3] (3d ed.1999)). See Newberg § 4:57 (confirming that the above passage \"reflects the law in most circuits” (footnote omitted)). . The advisory committee’s notes to rule 23 state that a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of the damages suffered by individuals within the class. On the other hand, although having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed. Fed.R.Civ.P. 23 advisory committee’s notes (citations omitted). Despite the generalized concern about the individual nature of the misrepresentations and/or reliance inquiry in fraud cases, there are at least three recurring situations in which courts have found common issues predominant in fraud cases: (1) those in which reliance is common across the class; (2) those in which courts have excused a showing of individual reliance; and (3) those in which the underlying law does not require a showing of individual reliance. Newberg § 4:58. Reliance may be a common issue when the same misrepresentation is made to the entire class; some circuits have held that written misrepresentations may be common issues while oral misrepresentations are presumed to be individualized. See, e.g., Moore v. PaineWebber, Inc., 306 F.3d 1247, 1253" } ]

[ { "docid": "23691109", "title": "", "text": "determining whether the facts support his allegations. In the nature of things, the authorized inquiry is primarily directed to the one who claims that the power of the court should be exerted in his behalf. As he is seeking relief subject to this supervision, it follows that he must carry throughout the litigation the burden of showing that he is properly in court. The authority which the statute vests in the court to enforce the limitations of its jurisdiction precludes the idea that jurisdiction may be maintained by mere averment or that the party asserting jurisdiction may be relieved of his burden by any formal procedure. If his allegations of jurisdictional facts are challenged by his adversary in any appropriate manner, he must support them by competent proof. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936) (quoted in Mason v. United States, 27 Fed.Cl. at 836-37). A plaintiff must establish jurisdiction by a preponderance of the evidence. Reynolds v. Army and Air Force Exchange Service, 846 F.2d 746, 747 (Fed.Cir.1988). In its review of a Rule 12(b)(1) motion to dismiss, the court must consider the facts alleged in the complaint to be true and correct. Id. at 747 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)). However, if the government’s motion challenges the truth of the jurisdictional facts alleged in the complaint, the court may consider relevant evidence in order to resolve the factual dispute. Id. (citing Land v. Dollar, 330 U.S. 731, 735, 67 5. Ct. 1009, 1010-11, 91 L.Ed. 1209 (1947)). 2. When Did the Claim Accrue? “It is hornbook law that a claim does not accrue until all events necessary to fix the liability of the defendant have occurred— when the ‘plaintiff has a legal right to maintain his or her action.’” Catawba Indian Tribe v. United States, 982 F.2d 1564, 1570 (Fed.Cir.1991) (quoting Corman, Limitation of Actions, § 6.1). The statute of limitations, however, can be tolled in certain circumstances. A cause of action first accrues when “all" } ]

[ { "docid": "3740070", "title": "", "text": "County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the plaintiffs. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). Nonetheless, “conclusory 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). In order for this court to have jurisdiction over plaintiffs’ complaint, the Tucker Act, as amended, 28 U.S.C. § 1491 (1994 & Supp. II 1998), requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act merely confers jurisdiction on the United States Court of Federal Claims; it does not create a substantive right that is enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948," }, { "docid": "11057119", "title": "", "text": "If a defendant challenges jurisdiction or plaintiffs claim for relief, however, the plaintiff cannot rely merely on allegations in the complaint but must instead bring forth relevant, competent proof to establish jurisdiction. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. at 189, 56 S.Ct. 780; see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404-05 (1994). The court may consider all relevant evidence in order to resolve the factual dispute, including evidentiary matters outside the pleadings. Indium Corp. of Am. v. Semi-Alloys, Inc., 781 F.2d 879, 884 (Fed.Cir.1985), cert. denied, 479 U.S. 820, 107 S.Ct. 84, 93 L.Ed.2d 37 (1986). In order for this court to have jurisdiction over a plaintiffs complaint, the Tucker Act requires that the plaintiff identify an independent substantive right enforceable against the United States for money damages. 28 U.S.C. § 1491. The Tucker Act states: 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 cases not sounding in tort. 28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, this Act waives sovereign immunity to allow jurisdiction over claims (1) founded on an express or implied contract with the United States; (2) for a refund from a prior payment made to the government; or (3) based on federal constitutional, statutory, or regulatory law. United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (quoting Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 605-06, 372 F.2d 1002 (1967)); see also Palmer v. United States, 168 F.3d 1310, 1314 (Fed.Cir.1999); Stinson, Lyons & Bustamante, P.A. v. United States, 33 Fed.Cl. 474, 478 (1995), aff'd, 79 F.3d 136 (Fed.Cir.1996). A waiver of" }, { "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": "8045009", "title": "", "text": "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); 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 a 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, 538 U.S. 906, 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. at 695. If a defendant or the court challenges jurisdiction or plaintiffs claim for relief, however, the plaintiff 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 Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army and Air Force" }, { "docid": "1546111", "title": "", "text": "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); 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 on 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 non-movant’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); 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. at 695. If a defendant or the court challenges jurisdiction or plaintiffs claim for relief, however, the plaintiff 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. at 189, 56 S.Ct. 780; see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. at 404-05. When considering a motion to dismiss for lack of subject matter jurisdiction," }, { "docid": "21079837", "title": "", "text": "v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the plaintiff. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). Nonetheless, “conclusory 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). In order for this court to have jurisdiction over plaintiffs complaint, the Tucker Act, as amended, 28 U.S.C.A. § 1491 (West 1994 & Supp.1998), requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act merely confers jurisdiction on the United States Court of Federal Claims; it does not create a substantive right that is enforceable against the United States for money" }, { "docid": "1315726", "title": "", "text": "at 695. If a defendant or the court challenges jurisdiction or plaintiffs claim for relief, however, the plaintiff 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. at 189, 56 S.Ct. 780; see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. at 404-05. When considering a motion to dismiss for lack of subject matter jurisdiction, the court may examine relevant evidence in order to resolve any factual disputes. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; see also Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed.Cir.1993) (“In establishing predicate jurisdictional facts, a court is not restricted to the face of the pleadings, but may review evidence extrinsic to the pleadings, including affidavits and deposition testimony.”), cert. denied, 512 U.S. 1235, 114 S.Ct. 2738, 129 L.Ed.2d 859 (1994); Vanalco v. United States, 48 Fed.Cl. at 73 (“If the truth of the alleged jurisdictional facts is challenged in a motion to dismiss, the court may consider relevant evidence to resolve the factual dispute.”). It is appropriate to grant a motion to dismiss under RCFC 12(b)(6) 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); Perez v. United States, 156 F.3d 1366, 1370 (Fed.Cir.1998); Commonwealth Edison Co. v. United States, 56 Fed.Cl. 652, 656 (2003). In order for this court to have jurisdiction over a plaintiffs complaint, the Tucker Act requires that the plaintiff identify an independent substantive right enforceable against the United States for money damages. 28 U.S.C. § 1491 (1994). The Tucker Act states: The United States Court of Federal Claims shall" }, { "docid": "10015199", "title": "", "text": "that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.1997). “[C]onclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. La-Hue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). When deciding on a motion to dismiss based on either lack of subject matter jurisdiction or 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 plaintiffs favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989). If a defendant challenges jurisdiction or plaintiffs claim for relief, however, the plaintiff cannot rely merely on allegations in the complaint but must instead bring forth relevant, competent proof to establish jurisdiction. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. at 189, 56 S.Ct. 780; see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404-05 (1994). The court may consider all relevant evidence in order to resolve the factual dispute, including evidentiary matters outside the pleadings. Indium Corp. of Am. v. Semi-Alloys, Inc., 781 F.2d 879, 884 (Fed.Cir.1985), cert. denied, 479 U.S. 820, 107 S.Ct. 84, 93 L.Ed.2d 37 (1986). In order for this court to have jurisdiction over a plaintiffs complaint, the Tucker Act requires that the plaintiff identify an independent substantive right enforceable against the United States for money damages. 28 U.S.C. § 1491. The Tucker Act states: 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" }, { "docid": "8030992", "title": "", "text": "claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Indian Tucker Act makes explicit that this court’s jurisdiction extends to “any tribe, band, or other identifiable group of American Indians” for claims against the United States accruing after August 13, 1946. 28 U.S.C. § 1505 (2000) (collectively, the Tucker Act and the Indian Tucker Act are referred to as the Tucker Acts). While the Tucker Acts provide the “clear statement from the United States waiving sovereign immunity” required to establish jurisdiction over a suit against the government, United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003), the Tucker Acts do not in themselves create a substantive right enforceable against the United States for money damages, United States v. Mitchell, 445 U.S. 535, 538-40, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (.Mitchell I). The plaintiff bears the burden of establishing subject matter jurisdiction. See Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). If the facts on which jurisdiction is predicated are challenged, the plaintiff must support the factual basis for jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988); McNutt, 298 U.S. at 189, 56 S.Ct. 780. The court must dismiss the action if jurisdiction is found lacking. See Rule 12(h)(3) of the Rules of the Court of Federal Claims (RCFC) (2005). The framework for determining whether a duty and, in particular, a fiduciary duty established in statute, regulation or contract is money-mandating is addressed in Mitchell I and United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (Mitchell II) and, more recently, in White Mountain Apache and United States v. Navajo" }, { "docid": "1546112", "title": "", "text": "(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. at 695. If a defendant or the court challenges jurisdiction or plaintiffs claim for relief, however, the plaintiff 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. at 189, 56 S.Ct. 780; see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. at 404-05. When considering a motion to dismiss for lack of subject matter jurisdiction, the court may examine relevant evidence in order to resolve any factual disputes. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; see also Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed.Cir.1993) (“In establishing predicate jurisdictional facts, a court is not restricted to the face of the pleadings, but may review evidence extrinsic to the pleadings, including affidavits and deposition testimony.”), cert. denied, 512 U.S. 1235, 114 S.Ct. 2738, 129 L.Ed.2d 859 (1994); Vanalco v. United States, 48 Fed.Cl. at 73 (“If the truth of the alleged jurisdictional facts is challenged in a motion to dismiss, the court may consider relevant evidence to resolve the factual dispute.”). In order for this court to have jurisdiction over a plaintiffs complaint, the Tucker Act requires that the plaintiff identify an independent substantive right enforceable against the United States for money damages. 28 U.S.C. § 1491 (2000). The Tucker Act states: The United States Court of Federal Claims shall have jurisdiction to render" }, { "docid": "8856461", "title": "", "text": "Montgomery Cent. Sch. 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. at 695. If a defendant or the court challenges jurisdiction or the plaintiffs claim for relief, however, the plaintiff 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. at 189, 56 S.Ct. 780; see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. at 404-05. When considering a motion to dismiss for lack of subject matter jurisdiction, the court may examine relevant evidence in order to resolve any factual disputes. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; see also Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed.Cir.1993) (“In establishing predicate jurisdictional facts, a court is not restricted to the face of the pleadings, but may review evidence extrinsic to the pleadings, including affidavits and deposition testimony.”), cert. denied, 512 U.S. 1235, 114 S.Ct. 2738, 129 L.Ed.2d 859 (1994); Vanalco v. United States, 48 Fed.Cl. at 73 (“If the truth of the alleged jurisdictional facts is challenged in a motion to dismiss, the court may consider relevant evidence to resolve the factual dispute.”). It is appropriate to grant a motion to dismiss under RCFC 12(b)(6) only if it appears “beyond doubt that [the 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. at 654, 119 S.Ct. 1661; Perez v. United States, 156 F.3d at 1370; Commonwealth Edison Co. v." }, { "docid": "8856460", "title": "", "text": "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, 538 U.S. 906,123 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. Sch. 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. at 695. If a defendant or the court challenges jurisdiction or the plaintiffs claim for relief, however, the plaintiff 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. at 189, 56 S.Ct. 780; see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. at 404-05. When considering a motion to dismiss for lack of subject matter jurisdiction, the court may examine relevant evidence in order to resolve any" }, { "docid": "10015200", "title": "", "text": "Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404-05 (1994). The court may consider all relevant evidence in order to resolve the factual dispute, including evidentiary matters outside the pleadings. Indium Corp. of Am. v. Semi-Alloys, Inc., 781 F.2d 879, 884 (Fed.Cir.1985), cert. denied, 479 U.S. 820, 107 S.Ct. 84, 93 L.Ed.2d 37 (1986). In order for this court to have jurisdiction over a plaintiffs complaint, the Tucker Act requires that the plaintiff identify an independent substantive right enforceable against the United States for money damages. 28 U.S.C. § 1491. The Tucker Act states: 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 cases not sounding in tort. 28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, this Act waives sovereign immunity to allow jurisdiction over claims (1) founded on an express or implied contract with the United States; (2) for a refund from a prior payment made to the government; or (3) based on federal constitutional, statutory, or regulatory law. United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (quoting Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 605-06, 372 F.2d 1002 (1967)); see also Palmer v. United States, 168 F.3d 1310, 1314 (Fed.Cir.1999); Stinson Lyons & Bustamante, P.A. v. United States, 33 Fed.Cl. 474, 478 (1995), aff'd, 79 F.3d 136 (Fed.Cir.1996). A waiver of traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” Saraco v. United States, 61 F.3d 863, 864 (Fed.Cir.1995) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)), cert. denied, 517 U.S. 1166, 116 S.Ct. 1565, 134 L.Ed.2d 665 (1996). The" }, { "docid": "8045010", "title": "", "text": "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. at 695. If a defendant or the court challenges jurisdiction or plaintiffs claim for relief, however, the plaintiff 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 Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army and Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404-05 (1994). In order for this court to have jurisdiction over a plaintiffs complaint, the Tucker Act requires that the plaintiff identify an independent substantive right enforceable against the United States for money damages. See 28 U.S.C. § 1491 (2000). The Tucker Act states: 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 cases not sounding in tort. 28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, this Act waives sovereign immunity to allow jurisdiction over claims (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" }, { "docid": "11057118", "title": "", "text": "grounds upon which the court’s jurisdiction depends.” However, “[d]etermination 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.1997), reh’g denied. “[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). When deciding on a motion to dismiss based on either lack of subject matter jurisdiction or 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 plaintiffs favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.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). If a defendant challenges jurisdiction or plaintiffs claim for relief, however, the plaintiff cannot rely merely on allegations in the complaint but must instead bring forth relevant, competent proof to establish jurisdiction. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. at 189, 56 S.Ct. 780; see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404-05 (1994). The court may consider all relevant evidence in order to resolve the factual dispute, including evidentiary matters outside the pleadings. Indium Corp. of Am. v. Semi-Alloys, Inc., 781 F.2d 879, 884 (Fed.Cir.1985), cert. denied, 479 U.S. 820, 107 S.Ct. 84, 93 L.Ed.2d 37 (1986). In order for this court to have jurisdiction over a plaintiffs complaint, the Tucker Act requires that the plaintiff identify an independent substantive right enforceable against the United States for money damages. 28 U.S.C. § 1491. The Tucker Act states: The United States" }, { "docid": "17390347", "title": "", "text": "the court must generally assume unchallenged facts are true. See Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). However, when disputed facts relevant to the issue of jurisdiction exist, the court may decide those questions of fact. Id.; Hedman v. United States, 15 Cl.Ct. 304, 306 (1988), aff';d, 915 F.2d 1552 (Fed.Cir.1990). Although the court must generally assume unchallenged facts are true when deciding whether requisite subject matter jurisdiction exists, the court is not required to accept plaintiffs framing of the complaint. See Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed.Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 2738, 129 L.Ed.2d 859 (1994). Instead, the court may consider materials and evidence extrinsic to the pleadings when jurisdiction is at issue. Id. at 1584; Estate of Akin v. United States, 31 Fed.Cl. 89, 92 (citing Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 1011 n. 4, 91 L.Ed. 1209 (1947)), aff'd, 43 F.3d 1487 (Fed.Cir.1994). The non-moving party bears the burden of establishing the court’s jurisdiction by a preponderance of the evidence when subject matter jurisdiction is questioned. Reynolds, 846 F.2d at 748; see also McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). This court’s jurisdiction is defined by the Tucker Act. 28 U.S.C. § 1491 (1994). The Tucker Act alone, however, does not create a substantive right to recover money, but instead waives sovereign immunity under specific conditions. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980). In order for this court to exercise jurisdiction over plaintiffs claim, the claim must be predicated on a constitutional provision, congressional statute, executive department regulation, or an express or implied contract with the United States. 28 U.S.C. § 1491(a)(1); Nussinow v. United States, 23 Cl.Ct. 556, 559 (1991). In the instant case, plaintiff asserted jurisdiction under the CDA, which applies" }, { "docid": "17679262", "title": "", "text": "S.Ct. 2490, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the plaintiff. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). Nonetheless, “conelusory 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). In order for this court to have jurisdiction over the plaintiffs complaint, the Tucker Act, 28 U.S.C. § 1491 (1994), as amended 28 U.S.C.A. § 1491 (West Supp. 1998), requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act merely confers jurisdiction on the. United States Court of Federal Claims; it does not create a substantive right that is enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992,100 S.Ct. 2979, 64 L.Ed.2d 849 (1980) (Mitchell I); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 47 L.Ed.2d 114" }, { "docid": "1315725", "title": "", "text": "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. at 695. If a defendant or the court challenges jurisdiction or plaintiffs claim for relief, however, the plaintiff 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. at 189, 56 S.Ct. 780; see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v. United States, 31 Fed.Cl. at 404-05. When considering a motion to dismiss for lack of subject matter jurisdiction, the court may examine relevant evidence in order to resolve any factual disputes. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 747; see also Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed.Cir.1993) (“In establishing predicate jurisdictional facts, a court is not restricted to the face of the pleadings, but may review evidence extrinsic to the pleadings," }, { "docid": "4086408", "title": "", "text": "exists, a court must accept as true all facts asserted in the plaintiffs complaint and draw all reasonable inferences in favor of the plaintiff. Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Under the Tucker Act, this court has jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). A related statute, the Indian Tucker Act, grants this court jurisdiction for claims against the United States brought by “any tribe, band, or other identifiable group of American Indians ... whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims.” 28 U.S.C. § 1505. Section 1500, however, limits the jurisdiction of this court over claims otherwise cognizable under the Tucker Act and Indian Tucker Act. If a material factual dispute arises regarding jurisdiction, the court may institute proceedings to resolve the pertinent jurisdictional issues. Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed.Cir.1993); Association of Merger Dealers, LLC v. Tosco Corp., 167 F.Supp.2d 65 (D.D.C.2001). In this instance, the court first requested and received documentary submissions from the parties, including affidavits and declarations, and then conducted an evidentiary hearing at which percipient witnesses testified about the circumstances involved in filing the complaints in this court and in the district court. See Lechliter v. United States, 70 Fed.Cl. 536, 543 (2006) (“[T]he court may look beyond the pleadings and ‘inquire into jurisdic tional facts’ in order to determine whether jurisdiction exists.” (quoting Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir. 1991))). ANALYSIS A. The Jurisdictional Limitation Arising From" }, { "docid": "21134597", "title": "", "text": "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); accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); see also Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996). In rendering a decision, the court must presume that the undisputed factual allegations included in the complaint by a plaintiff are true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d at 746; Alaska v. United States, 32 Fed.Cl. at 695. The burden of establishing jurisdiction is on the plaintiff. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Alaska v. United States, 32 Fed.Cl. at 695; Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 404 (1994). The court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). Nonetheless, “conelusory 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). In order for this court to have jurisdiction over the plaintiffs complaint, the Tucker Act, 28 U.S.C. § 1491 (1994), as amended, 28 U.S.C.A. § 1491 (West Supp.1998), requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for" } ]

[ { "docid": "15099997", "title": "", "text": "what it describes as the vague and eleventh-hour nature of appellant’s claim, the government maintains its initial disclaimer was sufficient and our call for supplementary affidavits unnecessary. Yet we need not resolve this issue, as the government’s subsequent affidavits have “put to rest any lingering doubts we had about the adequacy of [the] response.” In re Tse, 748 F.2d at 728 (footnote omitted). Our directive that the government supplement its response at the appellate level, while admittedly unusual, is not without precedent: we did the same in both Tse, id. at 728-29, and United States v. Doe, 451 F.2d 466, 467 (1st Cir.1971). In Doe, where the disclaimer was deficient prior to the case reaching this court, we vacated the contempt order with instructions that the district court could again hold the witness in contempt for refusing to testify on this ground. In Tse, by contrast, we affirmed the contempt order, citing the “eleventh hour raising of the wiretap issue and the reasonableness and arguable adequacy of the government’s attempts to meet its burden.” 748 F.2d at 728. We affirm the order in the instant case as well, not only because of the belated nature of the claim, as in Tse, but because the government, we think, was not fully responsible for the arguable deficiencies in its initial response. Sergeant McGreal was present at the contempt hearing, and the record reveals that the government was prepared to put him on the stand. Instead, following Agent Horan’s testimony, the district court deemed the government’s response sufficient and terminated the hearing. Under such circumstances, we cannot fully fault the government for not insisting on the presentation of further evidence. The order of contempt is affirmed. . A court may hold in civil contempt any grand jury witness who \"refuses to testify without just cause shown to comply with an order of the court to testify_” 28 U.S.C. § 1826(a). A showing that the questioning of such a witness was based on illegal electronic surveillance constitutes \"just cause\" for refusing to testify and precludes a finding of contempt. Gelbard v. United States, 408" } ]

[ { "docid": "8148508", "title": "", "text": "COFFIN, Chief Judge. Appellant was found in contempt under 28 U.S.C. § 1826 for refusing to obey an order of the district court that he appear in a lineup requested by a United States Grand Jury. He presently remains in jail because neither the district court nor this court upon preliminary review could find that the appeal was taken for any purpose other than delay. Upon full review of the briefs and records, our first impression has been confirmed on every issue but one. We affirm. A grand jury in Puerto Rico is investigating a terrorist attack on a United States Navy bus in which two persons were killed. Appellant was first called before the grand jury in March, 1980, and after a few preliminary questions was requested to furnish the grand jury with exemplars of his handwriting, hair and fingerprints and to submit to being photographed. Appellant refused, but after being ordered by the district court to comply with the grand jury’s request, he provided the exemplars and the photograph. At this time, appellant was notified that the grand jury wished him to return at the end of April, at which time he would be directed to appear in a lineup. Appellant appeared at the appointed time but refused to stand in the lineup. The district court immediately ordered appellant to comply with the grand jury directive. Although appellant had numerous motions before the court, he did not answer this order and a warrant for arrest issued the following day. Appellant surrendered himself and was released on bail. A hearing on the government’s motion for contempt was heard on May 8, after which the court determined that appellant had not demonstrated just cause for his refusal to appear in the lineup. Appellant was then incarcerated pursuant to the court’s order. Appellant raises three principal issues on appeal. First, he argues that the government did not offer sufficient evidence to the court to prove that he did not actually appear in the lineup. Second, he contends that the court erred in not allowing him to prove that the evidence he" }, { "docid": "7794972", "title": "", "text": "brought forth in the hearing on the motion to dismiss the indictment, appellant had returned a letter of August 10, 1968 sent to him by his draft board and had written on it that “I said more than I will not be able [to report for induction at the local board]! I said I wouldn’t and I gave reasons read it again.” The court said that it regarded this letter as indicating a man “dogmatic and unwavering in his attitude” and as part of “a wealth of testimony presented at the hearing on the motion as to * * * his absolute re fusal to come, his frame of mind and determination that he would not be inducted * * The court also remarked that, at the trial, in contrast to the hearing, “we have the flimsiest of eases possible presented * * Although not instructing the government to do so, the court suggested that the government might want to reopen its case and present the letter. The government heeded the court’s suggestion and the letter was admitted over objection. We face another procedural barrier to the consideration of this contention. Appellant’s argument concerning the trial judge’s conduct should have been raised by an appeal from the final judgment, rather than appeal from the denial of the motion for a new trial. Gray v. United States, 112 U.S.App.D.C. 86, 299 F.2d 467 (1962); see also United States v. Bertone, 249 F.2d 156, 161 (3d Cir. 1957) and Crowe v. DiManno, 225 F.2d 652, 659 (1st Cir. 1955). In addition, appellant’s failure to move for a judgment of acquittal would seem to preclude us, assuming that the issue of the judge’s conduct were properly before us, from considering whether the government’s case lacked sufficient evidence prior to its being reopened, i.e., whether there was prejudice. Ortiz-Jiminez v. United States, 393 F.2d 720 (9th Cir. 1968); cf. Home Ins. Co. of New York v. Davila, 212 F.2d 731 (1st Cir. 1954). Even were this issue properly before us, we would not deem the course of conduct outlined above as improper or as" }, { "docid": "12153398", "title": "", "text": "the government or requiring a hearing on the matter. See also Fraser v. United States, 452 F.2d 616, 621 (7 Cir., 1971). As indicated in the previous opinions, our Circuit has deemed such letters of denial sufficient as a disclaimer of governmental intervention by electronic means. Yet, subsequent to these decisions, certain indiscretions have been revealed concerning illegal electronic surveillance which seem to militate for a more formal and binding denial than those which were found to be adequate in Womack, supra, and Fraser, supra. We therefore are of the opinion that an official governmental denial of electronic surveillance must at the very least be submitted in the form of an affidavit by a responsible government official. Various Circuits have considered the adequacy of an affidavit of denial in similar cases and deemed the affidavit sufficient as an official denial. We agree this is the proper form of official denial. Consequently, a government affidavit of denial must be filed herein before the mandate can issue. We will therefore stay the mandate in this appeal not to exceed thirty days after the issuance of the circulated slip opinion in order for the government to comply with our request if possible. Said affidavit may be sworn to by the prosecutor personally in charge of this investigation or by the person in charge of the governmental agency conducting this grand jury probe. The affidavit need only deny electronic surveillance of appellants occurring after June 19, 1968, and need deny pen register surveillance only when used in conjunction with an illegal wiretap for reasons hereinafter articulated. If compliance is not realized, this action will be remanded to the District Court for a hearing to determine why the mittimus should not be stayed. As a second issue, appellants assert the District Court erred in its failure to hold a hearing on whether questions asked before the Special February 1971 Grand Jury were predicated on information obtained from investigatorial leads supplied by the use of a pen register. Their assumption is that United States v. Dote, 371 F.2d 176 (7 Cir., 1966), decided prior to 18" }, { "docid": "8148510", "title": "", "text": "was asked to provide related to information made available to the government through an illegal wiretap. Third, appellant claims that he should have not been held in contempt because the prosecutors abused the grand jury process. We address these arguments in the order presented. Appellant’s first argument, that the government did not present sufficient evidence to prove that appellant never actually appeared in the lineup, strains credulity. The government submitted an affidavit to support its motion for a show cause order, which stated that appellant had refused to appear in the lineup when requested. At the hearing appellant had the burden to show just cause for his failure to obey the court’s order. In re Bianchi, 542 F.2d 98, 100-01 (1st Cir. 1976). Appellant then had ample opportunity to avoid contempt by showing that he has subsequently appeared in the lineup. Not only did he fail to allege this fact, but his counsel conceded that he had not obeyed the court’s order when he stated in open court that his client “has a right to explain why he did not comply with the court order.” Appellant does not impress us with his attempt to engraft onto a summary procedure “meaningless formalities that would only serve to delay the proceedings.” Id. at 101. The next contention is. that under Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), appellant had a right to justify his refusal to appear in the lineup by proving that the government’s request was pursuant to information procured through illegal interception of wire communication. See 18 U.S.C. § 3504. The district court rejected this contention because it ruled that the question of illegal electronic surveillance could not be raised when a grand jury witness is ordered to provide only nontestimonial evidence such as exemplars or an appearance in a lineup. We need not decide this issue here, however, because, assuming that Gelbard applies to grand jury orders to appear in a lineup, we find that the government has met its burden to respond to the witness’ allegation by denying in an affidavit" }, { "docid": "15099995", "title": "", "text": "the files of their respective agencies and made further inquiries before preparing their affidavits. And we have said it is “important” that the attorney conducting the grand jury investigation has submitted an affidavit, as he or she is likely to know the source of “the evidence on which the questions are based.” In re Tse, 748 F.2d 722, 728 (1st Cir.1984); accord, e.g., In re Grand Jury Proceedings, 786 F.2d 3, 7 (1st Cir.1986) (per curiam). Here, both government attorneys have done so. In the face of this all-encompassing denial, the fact that Sergeant McGreal participated in the 1985 surveillance, and subsequently sought out appellant for an interview which prompted his appearance before the grand jury, causes only momentary pause. To be sure, an affidavit from Sergeant McGreal detailing the investigative basis for the interview (submitted ex parte and in camera if necessary, see id. at 5; In re Tse, 748 F.2d at 727) could have eliminated any suspicion of a link to the earlier surveillance. Yet given the unrelated nature of the two investigations, and especially given the lapse of time between the two, Sergeant McGreal’s emphatic denial that the surveillance contributed in any way to his decision to interview appellant is, we think, sufficient. III. We should add that none of these affidavits was presented to the district court; we directed the government to submit them to this court during the pendency of the appeal. The district court rested its decision on the sworn testimony of Agent Horan and the unsworn representations of AUSA Schwartz (which, in each case, corresponded closely to what was later conveyed in affidavit form). The government contends that this evidentiary presentation to the district court constituted an adequate § 3504 denial. It notes, correctly, that this court has adopted a flexible approach under which the scope and specificity of the government’s response are keyed to the timing and concreteness of the witness’s claim. See In re Tse, 748 F.2d at 728 (“government must be accorded some flexibility in meeting last minute claims”); In re Hodges, 524 F.2d at 570-71 (same). In light of" }, { "docid": "23451328", "title": "", "text": "been dismissed, sub silentio, as a defendant by the time of trial, since no evidence was presented against him. Furthermore, in the defendant’s Requests for Jury Instructions submitted after trial, Belmonte’s name is struck through. See Willhauck v. Halpin, 919 F.2d 788, 791 n. 9 (1st Cir.1990). . See Willhauck v. Halpin, No. 87-2127 (1st Cir. Oct. 13, 1987). . In summarizing Willhauck’s arguments in this appeal, we have reviewed all the materials submitted to us by his attorney, including the proposed Addendum to Plaintiffs, Appellants’ Reply Brief offered after oral argument. See Plaintiffs, Appellants’ Motion to Reconsider Denial of Late Filing of Addendum to their Reply Brief (Nov. 2, 1991). We have also reviewed the letters submitted by counsel for Willhauck and the MDC in response to our questions at oral argument regarding the provisions of Massachusetts law governing the use of blue lights on vehicles. . Officers Halpin, Perry, Callender, Huffam, and Mills. . See Willhauck v. Halpin, 919 F.2d 788, 791 n. 11 (1st Cir.1990). . This circuit has not imposed a \"rigid requirement on [a] district court to prepare a written statement in every case to justify its Rule 54(b) actions.” Pahlavi v. Palandjian, 744 F.2d 902, 905 (1st Cir.1984). Rather, in order to promote meaningful appellate review of the district court’s exercise of its discretion under Rule 54(b), we have suggested that “it should ordinarily make specific findings setting forth the reasons for its order.” Spiegel v. Trustees of Tufts College, 843 F.2d 38, 43 (1st Cir.1988). . At oral argument, counsel for Willhauck hinted — but did not unequivocally declare — that he had decided to abandon his facial challenge to section 25. The language of Willhauck’s brief, however, suggests otherwise insofar as it claims that \"police officers throughout the Commonwealth use section 25’s stop-provision as authority to make any kind of stop, with or without reasonable suspicion, lawful or unlawful.” Brief for Appellants at 13. We will therefore address the arguments as presented in the briefs. . We attempted to obtain, inter alia, the transcript of the trial below, but were informed that" }, { "docid": "22948705", "title": "", "text": "States v. Schiavo, supra, dissenting opinion, no such considerations are present in the instant appeal; the happenings which gave rise to this appeal took place following the effective date of Schofield I. I now turn to these. III. The first subpoena, at issue in Scho-field I, was issued in April, 1973, and directed Mrs. Schofield to present herself for photographs, fingerprinting and handwriting or handprinting exemplars. After our court’s decision became final, there was no government effort to enforce the initial subpoena. A second subpoena was issued in January, 1974, requesting that she testify before the grand jury. She did so under a grant of immunity. A third subpoena was issued in July, 1974, again seeking handwriting or handprinting exemplars, photographs, and fingerprints. Appellant filed a motion to quash on the ground that there was no supporting affidavit as required by Schofield I. On July 22 the district court denied this motion, finding that no advance request was made of the appellant to produce the materials. Such a request did follow on July 30; the next day a purported affidavit was submitted. This “affidavit” was not sworn to. On August 28, appellant filed an answer to the government’s motion to enforce, averring that the government had in its possession both a photograph and a handwriting exemplar. She later moved for additional discovery into the government’s claim of relevance and necessity. On October 16, the district court denied both motions; denying the government’s motion without prejudice. On October 29, a revised, sworn-to affidavit was filed. On. November 1, the district court ordered appellant to appear before the grand jury on November 12; on November 13, after she refused to comply, a show cause order issued and, following a hearing on that order November 15, the district court held her in civil contempt. This appeal followed; appellant has been released on bail. Reviewing these detailed proceedings and the opinion of the district court, I am persuaded that the government met two of the three requirements of Scho-field I. By affidavit, the government reported that the grand jury was investigating “possible violations of" }, { "docid": "8148509", "title": "", "text": "was notified that the grand jury wished him to return at the end of April, at which time he would be directed to appear in a lineup. Appellant appeared at the appointed time but refused to stand in the lineup. The district court immediately ordered appellant to comply with the grand jury directive. Although appellant had numerous motions before the court, he did not answer this order and a warrant for arrest issued the following day. Appellant surrendered himself and was released on bail. A hearing on the government’s motion for contempt was heard on May 8, after which the court determined that appellant had not demonstrated just cause for his refusal to appear in the lineup. Appellant was then incarcerated pursuant to the court’s order. Appellant raises three principal issues on appeal. First, he argues that the government did not offer sufficient evidence to the court to prove that he did not actually appear in the lineup. Second, he contends that the court erred in not allowing him to prove that the evidence he was asked to provide related to information made available to the government through an illegal wiretap. Third, appellant claims that he should have not been held in contempt because the prosecutors abused the grand jury process. We address these arguments in the order presented. Appellant’s first argument, that the government did not present sufficient evidence to prove that appellant never actually appeared in the lineup, strains credulity. The government submitted an affidavit to support its motion for a show cause order, which stated that appellant had refused to appear in the lineup when requested. At the hearing appellant had the burden to show just cause for his failure to obey the court’s order. In re Bianchi, 542 F.2d 98, 100-01 (1st Cir. 1976). Appellant then had ample opportunity to avoid contempt by showing that he has subsequently appeared in the lineup. Not only did he fail to allege this fact, but his counsel conceded that he had not obeyed the court’s order when he stated in open court that his client “has a right to" }, { "docid": "7709743", "title": "", "text": "found that he was disabled. Especially in the light of these circumstances, the right to have the additional evidence received and possibly rebutted at a hearing cannot be considered inconsequential. Social Security regulations contemplate supplementation of the evidence after the matter has come to the Appeals Council on review. 20 C.F.R. § 404.943. The evidence is to be received by the Council itself, or before an ALJ or member of the Council designated by the Council. Notice must be given “and the parties shall be given a reasonable opportunity to present evidence which is relevant and material to such matters.” There seems to be no reason why the supplementary evidence could not have been heard by the ALJ in the Chicago area so that appellant could be present. See 20 C.F.R. § 404.950, providing that the Appeals Council may remand a case to the ALJ to take further testimony. The letter sent to appellant March 22, 1973 indicated appellant could submit “evidence” and “a further written statement as to the facts and law.” The letter sent July 2 invites “comment” on the documents which were to constitute “additional evidence.” In our view the opportunity to submit material or comments in writing did not fulfill appellant’s right to a decision based on “evidence adduced at the hearing.” Appellant raises an additional issue. One of his physical problems concerned both his feet. The Appeals Council stated that, conceding that “claimant may experience some pain and discomfort, it has not been demonstrated that these problems have resulted in a significant impairment.” Appellant has contended in the district court and here that although the hearing record contains reports from three doctors concerning his foot problems, he had supplied, in connection with his application, “three additional affidavits obtained from the Army concerning his foot impairment.” Evidently neither he nor any HEW employee had seen to it that these affidavits were made part of the hearing record. Appellant argues that as a layman he should not be held responsible for determining whether they were included in a series of exhibits marked as a group at the" }, { "docid": "13931558", "title": "", "text": "COFFIN, Chief Judge. Appellant was held in contempt under 28 U.S.C. § 1826 as a recalcitrant witness before a grand jury. Confinement has been stayed pending appeal. On April 13, 1976 appellant appeared before a special grand jury for the District of Massachusetts investigating possible violations of 18 U.S.C. §§ 371, 1955 and 2. He refused to answer questions, invoking his Fifth Amendment privilege. On April 21, the district court, pursuant to a request from the United States Attorney, issued an order granting the witness “use” immunity under 18 U.S.C. §§ 6002 and 6003 and ordering him to testify. Appellant again appeared before the grand jury on April 29; he was advised of and given a copy of the court’s order, but continued to invoke his Fifth Amendment privilege. On May 5 the government filed a petition for contempt. In response to appellant’s motion, the district court granted discovery of affidavits in support of legal wiretaps and disclosure of all unauthorized wiretaps, but denied appellant’s requests for minutes of his prior grand jury testimony and his interviews with law enforcement officials. After hearings on May 13 and 21 appellant was held in contempt. At the hearings appellant challenged the sufficiency of the government’s wiretap affidavits, but he does not press this issue here. Appellant raises the following issues on appeal: (1) the denial of his request for copies of his prior grand jury testimony; (2) the sufficiency of the allegations in the contempt petition; (3) the government’s failure to describe at the “show cause” hearing specific questions that appellant had refused to answer; (4) the adequacy of “use” immunity in light of Massachusetts’ local policy of granting transactional immunity; and (5) the constitutionality of the federal statute, 18 U.S.C. § 1955, that supported the court ordered wiretap. We are not persuaded by any of appellant’s arguments, and so affirm. A grand jury witness has no general right to transcripts of his testimony. In re Bottari, 453 F.2d 370 (1st Cir.1972). Appellants’ ill-defined fear that a “slight inconsistency” between past and present testimony might subject him to perjury prosecution is unfounded." }, { "docid": "3068906", "title": "", "text": "OPINION OF THE COURT PER CURIAM: This appeal raises the question whether, after moving for disclosure of illegal electronic surveillance pursuant to 18 U.S.C. § 3504, a grand jury witness is entitled to a direct and explicit statement from the Government affirming or denying “the occurrence of the alleged unlawful act”; or whether, as in the present case, an ex parte, in camera presentation before the district judge constitutes a sufficient response under the statute. We. conclude that the latter procedure does not comport with the requirements of section 3504, and remand the case for further proceedings consistent with this opinion. I After he was subpoenaed to testify before a grand jury investigating possible violations of, inter alia, the Hobbs Act and the RICO Act, the appellant raised his fifth amendment privilege and was granted use immunity. He then filed a motion for disclosure of electronic surveillance pursuant to 18 U.S.C. § 3504. In support of his motion, the appellant submitted his own affidavit and that of another individual. The affidavits essentially assert that there had been “unusual sounds” on the appellant’s phone, including “clicking” and “short high pitched whirling sounds,” and that two policemen had told the other individual that the appellant’s phone had been wiretapped. The Government declined to “affirm or deny” the existence of an illegal wiretap. Instead, it argued that the appellant’s motion was premature, inasmuch as the appellant had not yet been held in contempt. Citing “considerations of judicial economy,” however, the Government did express its willingness to make an ex parte, in camera presentation to the district court regarding the appellant’s motion. The Government stressed that such a presentation was necessary because “the investigation is continu ing and will continue after [the appellant’s] appearance before the Grand Jury; ... [and] the Government believes that certain information presented in the course of its presentation would not be appropriately disclosed to [the appellant] at this time.” Appendix at 35A-36A. The district judge agreed with the Government that an in camera, ex parte hearing would be appropriate. After conducting such a proceeding, the judge concluded that no" }, { "docid": "13664352", "title": "", "text": "persuasion?\" Schaffer, 126 S.Ct. at 533 (citation omitted). . Appellants also argue that, in the event Schaffer is deemed applicable and their evidence is found to be insufficient, the case should be remanded “because this case was tried under controlling law which imposed the burden of proof on the school district.” (Appellants' Letter Br.) Appellants do not, however, give any indication of what \"additional evidence” they would be able to produce or why, regardless of where the burden is placed, they would not have submitted that evidence in pressing their claim during the prior proceedings. .An amicus brief in support of appellants details the benefits realized by disabled children when fully included in mainstream educational environments. We do not question the intent of the IDEA, as explicitly stated in the statute, to ensure that disabled students are educated “to the maximum extent appropriate” with nondisabled students. Our role here is simply to review, under the applicable standard of review, the District Court's application of that statutoiy scheme to the facts of this case. On that issue, the amicus brief offers little guidance. . The Board’s inability to carry what was then its burden on this question before the ALJ does not necessarily lead to the conclusion that appellants on remand would be able to carry what is now their burden. In their letter brief following Schaffer, however, appel-lees did not request that this aspect of the case be remanded for proceedings under the burden of proof announced in Schaffer. We, therefore, will uphold the award of partial reimbursement. . Appellants take issue, as well, with the adequacy of the supplemental services provided in the spring of 2002. We have considered the arguments raised and find them unpersuasive. . Appellants also believe the IEP did not include adequate measurable goals individualized to M.S. The ALJ and District Court, under the then-governing burden, found for the Board. While that finding may have presented us with a close question before, we see no basis for upsetting it now." }, { "docid": "12273707", "title": "", "text": "OPINION OF THE COURT BECKER, Circuit Judge. This appeal presents the question whether someone found in civil contempt for failure to testify before a grand jury is entitled to know the commencement and termination dates of that grand jury. The district court denied contemnor’s motion for disclosure of the dates. We will reverse. I. Appellant Patrick DiLoreto was convicted of various drug and income tax violations and sentenced to twenty years imprisonment. Although his conviction was vacated and remanded on direct appeal, United States v. DiLoreto, 888 F.2d 996 (3d Cir.1989), appellant remains in custody pending a new trial. In January 1989, after serving only three months of his prison term, appellant was subpoenaed to appear before the federal grand jury that was investigating the activities of one Merchie C. Calabrese, Jr. When appellant invoked the privilege against self-incrimination, the government sought and obtained an order granting appellant use immunity and compelling him to respond. See 18 U.S.C. §§ 6002, 6003 (1988). This order notwithstanding, appellant refused to answer questions before the grand jury. The government therefore moved for a Rule to Show Cause why he should not be held in contempt. Appellant waived a hearing and informed the court (through counsel) that he had no intention of answering questions. The court thereupon found appellant in contempt of court and remanded him to the custody of the United States Marshal until such time as he should purge himself of the contempt by agreeing to answer questions, or eighteen months, or the remaining life of the grand jury, whichever was least. Appellant has been in various local jails since that time. On October 6, 1989, appellant moved for disclosure of the commencement and termination dates of the grand jury. The district court, on February 8, 1990, denied the motion without opinion. This appeal followed. II. A. Federal Rule of Criminal Procedure 6(e), which codifies the longstanding policy of secrecy surrounding federal grand jury proceedings, obviously constrains the right of public access to grand jury records. More particularly, Rule 6(e)(2) imposes a rule prohibiting disclosure of “matters oc curring before the grand" }, { "docid": "7739666", "title": "", "text": "But “[t]he matter of continuance is traditionally within the discretion of the trial judge . ” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). On this record, we cannot say that the failure to grant a continuance constituted an abuse of dis cretion. Trial counsel for Cardile never made an offer of proof, as to the contents of the alleged “conversations.” Nor did he — after the return of the verdict and the witness’s presumed arrival from Atlanta — make a motion for a new trial, with an affidavit setting forth the testimony in detail. (At that point, having had the chance to interview the witness in person, he should have known the exact nature of the proffered evidence.) Given the vagueness of counsel’s allusion to the witness’s story, the judge acted within bounds in refusing appellant an adjournment. Cf. United States v. Wyler, 487 F.2d 170, 173-174 (2d Cir. 1973). We have considered Cardile’s other points on appeal and find them to be without merit. We therefore affirm the conviction of appellant Cardile. . On February 21, 1974, Parton was sentenced to two years probation. . In his brief on appeal, Frattini alternatively argued that the report had never been received in evidence at all, yet was nonetheless improperly allowed to be brought into the jury room. At oral argument, appellate counsel conceded that this position was incorrect. . Supplementary Brief for Appellee at 2 (submitted in letter form, in response to the panel’s request at oral argument). . Supplementary Brief for Appellee at 2, supra note 3. . Id. at 3. . In light of our disposition of this matter, we do not reach Frattini’s second claim on appeal: that the court erred by failing to hold a hearing to determine whether one of the jurors was able to understand English. Cardile wisely does not make this argument since his counsel objected in the trial court to excusing the juror, on the grounds that “[h]e understood the questions that were put to him by [the court] and he gave answers to" }, { "docid": "22171583", "title": "", "text": "of Health & Human Servs., 926 F.2d 789, 791 n. 1 (9th Cir.1991) (POMS). Finally, Lowry argued below that various codes of judicial conduct — namely, the ABA’s Model Code of Judicial Conduct, its Model Code of Judicial Conduct for Federal Administrative Law Judges and the Oregon Code of Judicial Conduct — impose enforceable duties on ALJs. The district court rejected the first two authorities because the Administration had not specifically adopted them as binding and the third because Lowry had not timely raised the argument. Lowry offers no meaningful response to these rulings and has accordingly waived his claims. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996). None of the authorities Lowry offers creates legally enforceable duties. The district court therefore correctly rejected his claims. 3. We have one final matter to address. The Administration filed, along with its answering brief, a one-page letter dated April 14, 2002, from Acting Chief ALJ Frank Cristaudo to Lowry. The letter is apparently the culmination of the agency’s three-and-a-half year effort to decide whether to investigate Lowry’s December 1998 bias complaint. It concludes that both Hyatt and Lowry acted unprofessionally, but that the evidence of bias was insufficient to warrant a formal investigation. The letter bears a tan cover with the prominent caption “Supplemental Excerpts of Record.” It is, however, nothing of the sort. The district court docket shows that the letter was never made a part of the record. Indeed, it could not have been, because it post-dates not only the notice of appeal but even Lowry’s opening brief on appeal. Save in unusual circumstances, we consider only the district court record on appeal. See Barilla v. Ervin, 886 F.2d 1514, 1521 n. 7 (9th Cir.1989). Federal Rule of Appellate Procedure 10(a) explains which materials constitute the record. Fed. R.App. P. 10(a). And Circuit Rule 30-1 provides that the appellant (and, if necessary, the appellee) shall prepare “excerpts” of that record. See 9th Cir. R. 30-1.1(a). The rather obvious implication is that the “excerpts of record” are just that: “excerpts” of the “record.” This limitation is fundamental. As a" }, { "docid": "3068911", "title": "", "text": "denial, the procedure afforded to the witness in this matter was procedurally deficient under section 3504. The case will be remanded to the district court so that the Government may, if it chooses, file an affidavit, sufficient under In re Horn and D’Andrea, affirming or denying the existence of illegal electronic surveillance. The witness then will have fifteen days to respond to the Government’s statement. If the Government’s affidavit is sufficient on its face, and if the witness produces no evidence that the representations made by the Government in the affidavit are false, the district court may then enter a new order denying the witness’s petition for disclosure under section 3504, and once again hold the witness in contempt. . Because of the ongoing nature of the grand jury investigation, we will refer to the appellant in this case not by name but by the terms “witness” or “appellant.” . As the Court stressed in In re Horn, 458 F.2d 468, 471 (3d Cir. 1972), “it would be desirable for the Government’s affidavit to contain a more complete statement setting forth whether there had been any wiretapping or electronic surveillance including that which the Government considers to be legal” and further indicating “with some specificity which ‘appropriate agencies’ were in fact contacted.” . In D'Andrea, the Acting Assistant Attorney General indicated in a letter “that a check had been made of the appropriate agencies and that appellant had not been subjected to electronic surveillance by the government,” 495 F.2d at 1173 (footnotes omitted). The Court concluded that, though an affidavit would have been “preferable,\" a letter was acceptable in a case such as D’Andrea, where the appellant had “come forward with no more than a bald accusation of illegality.” Id. at 1174 n.12. . After this appeal had been filed, the Assistant United States Attorney did disclose to the witness that there was “one consensual recording of a face-to-face conversation between [the witness] and another individual, made without [the witness’s] knowledge, in the possession of the Government.” Appendix at 80A. . After this case had been argued, the Assistant United" }, { "docid": "6162901", "title": "", "text": "was appointed by this court to represent Mr. Benavides. He was ably assisted by John J. Hoeffner, supervising attorney, and two law students, Brian L. Heller and Robert T. Magill. Together, their efforts provided Mr. Be-navides with extremely competent counsel in pursuit of this appeal. The Court is appreciative of this pro bono publico legal assistance. . On appeal, the Government does not oppose Benavides’ request for costs, i.e., as distinguished from attorney fees. The Government asserts that, ”[i]n connection with his motion for further relief, appellant sought additional costs of $10 for 'supplies and postage in attempting to have [appellee] comply with the [District] Court's order.’ Appellee will not dispute appellant's entitlement to these costs and will promptly take the necessary steps to reimburse him the $10 requested.\" Government’s Brief at 22 (citation omitted). . Section 552(a)(4)(E) reads: The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. . . Section 552(a)(4)(F) reads: Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends. .Section 552(a)(4)(G) reads: In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member. . Section 1988(b)" }, { "docid": "17940515", "title": "", "text": "by broad discovery of government materials gives the witness as much protection as can be reconciled with expeditious handling of the grand jury. This is not the proper forum for declarations on the validity of wiretaps which are not directly related to the proceeding. Appellant argues briefly on appeal that the affidavit supporting E.B.D. 71 — 98 was in part based on evidence obtained from a prior tap on another’s telephone. In the district court, however, although one paragraph of a 23 paragraph motion for discovery related to the same tap, the claim argued to the court was that since E.B.D. 71 — 98 was the result of a “cumulative investigation”, appellant was entitled to discovery of all taps relating to that investigation from 1968 to 1974. Such a blanket inquiry we deem foreclosed by Calandra, supra. As to whether or not a “mother tap” appears sufficiently relevant as to require its discovery in proceedings relating to a subsequent tap, we imply no opinion, agreeing with the government that the issue was not raised with sufficient specificity before the district court. The appellant received all the information he was entitled to at the time. His citation for contempt is affirmed. Affirmed. . E.B.D. 71-98 was previously found to be a legal wiretap and E.B.D. 71-203 was previously admitted to have been authorized by Will Wilson, compare In re Marcus, 491 F.2d 901 (1st Cir. 1974) with United States v. Giordano, 416 U.S. 505, 520, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), facts both the district court and appellant’s counsel were apprised of prior to the contempt hearing. The government offered the contents of the 71-98 tap for court examination in support of its affidavit that all questions and information were derived therefrom. Moreover, appellant’s attorney had been in possession of the documents supporting all three taps (E.B.D.s 71-98, 71-168, and 71-203) for a substantial time prior to the contempt hearing of November 12. Under all these circumstances, appellant’s contention that he was denied a reasonable time for preparation of his defense, Fed. R.Crim.Proc. 42(b), recognized as applicable to such proceedings" }, { "docid": "9575760", "title": "", "text": "We find that this letter does not have any significance in light of our disposition of this appeal, and, therefore, do not concern ourselves with it. . Although not cited by the government, another decision of this Court held, on the authority of DiBella, that an order of the district court, declining to enjoin presentation of evidence to a grand jury, was interlocutory and not appealable in advance of final judgment. Austin v. United States, 353 F.2d 512 (4th Cir.1962) (per curiam). . Appellants assert for the first time on appeal that they have been denied access to their property. Based upon the record before it, the district court found otherwise. The postal inspector’s affidavit, which was before the court, states that appellants have been given access upon request to the records. It further states that appellants have availed themselves of this opportunity only twice since the seizure. On this record, we cannot say that the district court’s finding is clearly erroneous. Nor will we permit appellants to supplement the record on appeal by submitting the affidavit and exhibits of appellant Jacobs that access to the records has been denied. If, as appellants claim, the primary purpose of their motion is return of the records because the seizure has severely impaired their operations, it would seem that any difficulty in obtaining access to the records would have been brought to the attention of the district court to rebut the postal inspector’s affidavit or otherwise support their motion. Nonetheless, appellants never advised the district court that they were having difficulty obtaining access to the records even though the court did not render its decision until August 22, 1984, more than a full year after the records were seized. See Imperial Distributors, 617 F.2d at 895-96. . We are satisfied that there is an ongoing grand jury investigation. Although we did not pursue the government’s offer to provide in camera an affidavit outlining the status of the grand jury investigation, appellants concede that “[t]he clear implication of the government’s tender of the affidavit is that the investigation is apparently ongoing.” Response, p." }, { "docid": "15099996", "title": "", "text": "and especially given the lapse of time between the two, Sergeant McGreal’s emphatic denial that the surveillance contributed in any way to his decision to interview appellant is, we think, sufficient. III. We should add that none of these affidavits was presented to the district court; we directed the government to submit them to this court during the pendency of the appeal. The district court rested its decision on the sworn testimony of Agent Horan and the unsworn representations of AUSA Schwartz (which, in each case, corresponded closely to what was later conveyed in affidavit form). The government contends that this evidentiary presentation to the district court constituted an adequate § 3504 denial. It notes, correctly, that this court has adopted a flexible approach under which the scope and specificity of the government’s response are keyed to the timing and concreteness of the witness’s claim. See In re Tse, 748 F.2d at 728 (“government must be accorded some flexibility in meeting last minute claims”); In re Hodges, 524 F.2d at 570-71 (same). In light of what it describes as the vague and eleventh-hour nature of appellant’s claim, the government maintains its initial disclaimer was sufficient and our call for supplementary affidavits unnecessary. Yet we need not resolve this issue, as the government’s subsequent affidavits have “put to rest any lingering doubts we had about the adequacy of [the] response.” In re Tse, 748 F.2d at 728 (footnote omitted). Our directive that the government supplement its response at the appellate level, while admittedly unusual, is not without precedent: we did the same in both Tse, id. at 728-29, and United States v. Doe, 451 F.2d 466, 467 (1st Cir.1971). In Doe, where the disclaimer was deficient prior to the case reaching this court, we vacated the contempt order with instructions that the district court could again hold the witness in contempt for refusing to testify on this ground. In Tse, by contrast, we affirmed the contempt order, citing the “eleventh hour raising of the wiretap issue and the reasonableness and arguable adequacy of the government’s attempts to meet its burden.” 748" } ]

[ { "docid": "6460024", "title": "", "text": "the Taddeos’ only creditor, continuance of the stay is justified only if the Taddeos’ plan can in fact provide for Di Pierro’s mortgage. Otherwise, the stay would serve only to delay foreclosure for delay’s sake, and would not be justified. In re Pearson, 4 Collier Bankr. Cas.2d (MB) 57, 64 n. 8, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981). Therefore, although the Taddeos’ Chapter 13 plan is not before us for approval, the question of whether under the plan the Taddeos can pay arrearages to Di Pierro and thereby cure the default and reinstate the mortgage is squarely presented for decision. The relevant parts of § 1322(b) read as follows: (b) ... the plan may— * * * * * * (2) modify the rights of holders of secured claims other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; When Congress empowered Chapter 13 debtors to “cure defaults,” we think Congress intended to allow mortgagors to “deaccelerate” their mortgage and reinstate its original payment schedule. We so hold ■for two reasons. First, we think that the power to cure must comprehend the power to “de-accelerate.” This follows from the concept of “curing a default.” A default is an event in the debtor-creditor relationship which triggers certain consequences — here, acceleration. Curing a default commonly means taking care of the triggering event and returning to pre-default conditions. The consequences are thus nullified. This is the concept of “cure” used throughout the Bankruptcy Code. Under § 365(b), the trustee may assume executory contracts and unexpired leases only if he cures defaults — but the cure need address only the individual event of default, thereby repealing" } ]

[ { "docid": "221688", "title": "", "text": "we think Con gress intended to allow mortgagors to “deaccelerate” their mortgage and reinstate its original payment schedule. We so hold for two reasons. First, we think that the power to cure must comprehend the power to “de-accelerate.” This follows from the concept of “curing a default.” A default is an event in the debtor-creditor relationship which triggers certain consequences-here, acceleration. Curing a default commonly means taking care of the triggering event and returning to pre-default conditions. The consequences are thus nullified. This is the concept of “cure” used throughout the Bankruptcy Code. Secondly, we believe that the power to “cure any default” granted in § 1322(b)(3) and (b)(5) is not limited by the ban against “modifying” home mortgages in § 1322(b)(2) because we do not read “curing defaults” under (b)(3) or “curing defaults and maintaining payment” under (b)(5) to be modifications of claims. Id. at 26-27. Following the Grubbs decision, the Seventh Circuit Court of Appeals decided Matter of Clark, 738 F.2d 869 (7th Cir.1984), which also involved a chapter 13 plan that proposed to cure a prepetition acceleration of a long term mortgage. In holding that the power to cure included the power to deaccelerate the debt the court reasoned as follows: The terms “modify” and “cure” are nowhere defined in the Bankruptcy Code. However, it is clear that Congress intended “cure” to mean something different from “modify”; otherwise, in light of (b)(2), (b)(3) would be superfluous. Ordinarily, the means by which one cures a default is by paying all amounts due and owing; however, “cure” is the end, not the means, and what the term refers to is the restoration of the way things were before the default. Thus, the plain meaning of “cure,” as used in § 1322(b)(2) [sic] and (5), is to remedy or rectify the default and restore matters to the status quo ante. Id. at 871-872. Each of the above cases dealt with the deacceleration of a home mortgage through a chapter 13 plan. In cases involving a home mortgage which became fully matured prepetition without the benefit of acceleration, generally two lines" }, { "docid": "6543323", "title": "", "text": "by a security interest in real property that is the debtor’s principal residence ...” In re Clark, 738 F.2d 869 (7th Cir.1984); Grubbs v. Houston First American Savings Assn., 730 F.2d 236 (5th Cir.1984 en banc); In re Taddeo, 685 F.2d 24 (2d Cir.1982). The overwhelming majority of District and Bankruptcy Courts have also held the same. The courts have strictly interpreted the word “modify” in order to effectuate the rehabilitative purposes of Chapter 13. As the Clark court explained: (738 F.2d at 872): ... [T]he power to cure in § 1322(b)[ (3) and (5)] necessarily includes the power to de-accelerate the payments on the note. De-acceleration, therefore, is not a form of modification banned by [§ 1322](b)(2) but rather is a permissible and necessary concomitant of the power to cure defaults.” Similarly, in Taddeo, as quoted and followed in Grubbs, the court held that “the power to ‘cure any default’ granted in § 1322(b)(3) and (b)(5) is not limited by the ban against ‘modifying’ home mortgages in § 1322(b)(2) because we do not read ‘curing defaults’ under (b)(3) or ‘curing defaults and maintaining payments’ under (b)(5) to be modifications of claims.” 730 F.2d at 241 (Grubbs), quoting 685 F.2d at 27 (Taddeo ) (emphasis in originals). True it is that a somewhat closer question is presented as to whether post -petition arrears, including post-confirmation arrears, may be cured, in view of the provision in § 1322(b)(5) for “maintenance of payments while the case is pending on any ... secured claim on which the last payment is due after the date on which the final payment under the plan is due.” Dictum in Grubbs states that “the proposed plan might possibly not be able to ‘modify’ the obligation to pay monthly installment amounts that become due on a home mortgage subsequent to the filing of the Chapter 13 petition ...” (Emphasis added.) In re Parker, 46 B.R. 106, 108, fn. 1 (Bankr.N.D.Ga.1985) goes further and flatly states that “the Code prohibits the plan from undertaking to cure a post-petition default” on a home mortgage. [Emphasis in original.] This Court does" }, { "docid": "1767717", "title": "", "text": "556, 559 (2 Cir.1982). In that case the court held that debtors could cure defaults and de-accelerate their secured long-term residential debt which had been accelerated under the terms of their agreement, prior to the filing of the Chapter 13 Petition. 24 B.R. at 798. Similarly, the Second Circuit Court of Appeals in the matter of In re Taddeo, 685 F.2d 24 (2d Cir.1982), permitted debtors in a Chapter 13 case to cure defaults under a purchase money mortgage and to continue making monthly mortgage payments, despite the mortgagee’s prepetition acceleration of the mortgage. The In re Taddeo court reasoned that the power to cure mortgage arrears granted to debtors under 11 U.S.C. § 1322(b) includes the power to “de-accelerate” the mortgage and reinstate its original payment schedule. 685 F.2d at 26. The In re Taddeo court further determined that the power to cure any default granted by Sections 11 U.S.C. § 1322(b)(3) and (b)(5) is not restricted by 11 U.S.C. § 1322(b)(2), which forbids the modification of security interests in a debtor’s principal residence. The In re Taddeo court reasoned that curing defaults under 11 U.S.C. § 1322(b)(3) and curing defaults and maintaining payments under 11 U.S.C. § 1322(b)(5) are not modifications of claims. 685 F.2d at 27. The In re Simpkins court, while recognizing the right to cure, also recognized that 11 U.S.C. § 1322(b)(2) prevents the application of the cram-down provision of 11 U.S.C. § 1325(a)(5)(B) to holders of claims secured only by residential real estate. 16 B.R. at 963. See also, In re Taddeo, 685 F.2d 24, 27-28 (2d Cir.1982); First Financial Savings & Loan Association v. Winkler, 29 B.R. 771, 775-776 (N.D.Ill.1983); In re Ivory, 32 B.R. 788, 793 (Bkrtcy.D.Or.1983); In re McSorley, 24 B.R. 795, 798 (Bkrtcy.D.N.J.1982); United Companies Financial Corporation v. Brantley, 6 B.R. 178, 189 (Bkrtcy.N D.Fla. 1980); Matter of Sulzer, 2 B.R. 630, 636 (Bkrtcy.S.D.N.Y.1980). The In re Simpkins court recognized that while 11 U.S.C. § 506 determines the extent to which a claim is a secured or an unsecured claim, it does not necessarily affect the right to 'receive payment" }, { "docid": "16834228", "title": "", "text": "addressed by the Second Circuit Court of Appeal in the case of In Re Taddeo, 685 F.2d 24, 9 B.C.D. 556 (2nd Circuit, 1982). The facts of the Taddeo ease differ somewhat from the present case. In Taddeo, the mortgagee had accelerated the balance of the mortgage under State law, but had not obtained a final judgment of foreclosure and sale. The Second Circuit, in a well reasoned opinion, tracked the rights of a Chapter 13 debtor under Bankruptcy Code Section 1322(b). The Court found that, “When Congress empowered Chapter 13 debtors to ‘cure defaults,’ we think Congress intended to allow mortgagors to ‘de-accelerate’ their mortgages and reinstate its original payment terms.” (Id. at 26, 9 B.C.D. at 558). The Second Circuit further found that, “... the power to ‘cure any default’ granted in Section 1322(b)(3) and (b)(5) is not limited by the ban against ‘modifying’ home mortgages in Section 1322(b)(2) because we do not read ‘curing defaults’ under (b)(3) or ‘curing and maintaining payments’ under (b)(5) to be modifications of claims.” (Id. at 27, 9 B.C.D. at 559) Finally and most importantly to the instant case, the Second Circuit has ruled, (mortgagee) “Di Pierro’s argument reduces in the end to an assertion that because she can accelerate her mortgage under state law, the Taddeos can cure only as provided by state law. This interpretation of Section 1322(b) would leave the debtor with fewer rights under the new Bankruptcy Code than under the old Bankruptcy Act of 1898. Defaulting mortgagees would forfeit their right to cure even before the start of foreclosure proceedings, before they have hired lawyers and therefore before they knew anything about their rights under Chapter 13. Such a result would render the remedy in Section 1322(b) unavailable to all but a select number of debtors. See In re Thompson, 17 B.R. 748, 752-53 (Bkrtcy.W.D.Mich.1982). Such a result would be totally at odds with the ‘overriding rehabilitative purposes of Chapter 13.’ In re Davis, 15 B.R. 22, 24 (Bkrtcy.D.Kan.), aff’d, 16 B.R. 473 (D.C.Kan.1981).” (Id. at 29, 9 B.C.D. at 561). Various Bankruptcy Court decisions have been" }, { "docid": "7731494", "title": "", "text": "“cure defaults,” we think Congress intended to allow mortgagors to “deaecelerate” their mortgage and reinstate its original payment schedule. We so hold for two reasons. First, we think that the power to cure must comprehend the power to “de-accelerate.” This follows from the concept of “curing a default.” A default is an event in the debtor-creditor relationship which triggers certain consequences — here, acceleration. Curing a default commonly means taking care of the triggering event and returning to pre-default conditions. The consequences are thus nullified. This is the concept of “cure” used throughout the Bankruptcy Code.... Secondly, we believe that the power to “cure any default” granted in § 1322(b)(3) and (b)(5) is not limited by the ban against “modifying” home mortgages in § 1322(b)(2) because we do not read “curing defaults” under (b)(3) or “curing defaults and maintaining payments” under (b)(5) to be modifications of claims. 685 F.2d at 26-27. The Taddeo court stated that policy considerations strongly supported its holding: Conditioning a debtor’s right to cure on its having filed a Chapter 13 petition prior to acceleration would prompt unseemly and wasteful races to the courthouse. Worse, these would be races in which mortgagees possess an unwarranted and likely insurmountable advantage: wage earners seldom will possess the sophistication in bankruptcy matters that financial institutions do, and often will not have retained counsel in time for counsel to do much good. In contrast, permitting debtors in the Taddeos’ position to de-accelerate by payment of the arrearages will encourage parties to negotiate in good faith rather than having to fear that the mortgagee will tip the balance irrevocably by accelerating or that the debtor may prevent or at least long postpone this by filing a Chapter 13 petition. Id. at 27. The mortgagee distinguishes this case from Taddeo because the mortgagee has, in this case, obtained a default judgment. In Taddeo, on the other hand, the creditors had accelerated their mortgage but had not obtained foreclosure judgment prior to the filing of a Chapter 13 plan. Taddeo, Ninth Ward correctly states, never resolved the issue confronting this court: whether the" }, { "docid": "7134583", "title": "", "text": "are not “modified.” There is no modification of a creditor’s claim if he is receiving 100% of what he is due plus accruing interest up until the time of payment. I agree with Judge Kelley that the protection of section 1322(b)(2) was intended to prevent the application of the “cram-down” provision of the Bankruptcy Code to the holder of a claim secured solely by residential real estate. 16 B.R. at 963. It was not intended to be applied to situations like the present plan so as to work an injustice on the debtors’ attempt to keep their home. The Second Circuit has recently agreed with this interpretation and stated: ‘... we believe that the power to “cure any default” granted in § 1322(b)(3) and (b)(5) is not limited by the ban against “modifying” home mortgages in § 1322(b)(2) because we do not read “curing defaults” under (b)(3) or “curing defaults and maintaining payments” under (b)(5) to be modifications of claims.’ In Re Taddeo, 685 F.2d 24, 9 B.C.D. 556, 559 (2 Cir.1982). In that case the court held that debtors could cure defaults and de-accelerate their secured long-term residential debt which had been accelerated under the terms of their agreement, prior to the filing of the Chapter 13 Petition. The cited cases also support the position that Capital Resources is not entitled to relief from the automatic stay because of the application of section 1322(b)(5). Even though the entire mortgage had been accelerated in In Re Taddeo, supra, and thus was due before the debtors’ filed their Chapter 13 Petition, the Second Circuit held that the statute did not bar the curing of the default and reinstatement of regular payments, as if a default had not occurred. Similarly, Judge Kelley in In Re Simpkins, supra, held that the statute was no bar to curing defaults under a plan in which the last payment on the note was due before the completion of the plan. He reasoned as follows: Thus, the plan can provide for curing defaults and maintaining regular payments without modifying the claimant’s rights in violation of § 1322(b)(2)." }, { "docid": "2449406", "title": "", "text": "contract, as that word is ordinarily used. Id. at 1384. The instant case is analogous to Seidel. Debtor is attempting to postpone payment of the balloon payment beyond the time agreed by the parties. The parties’ land contract provided for final payment on March 1, 1987. Debtor, however, proposes to pay this amount over the 60 month term of his plan. Such a modification of mov-ants’ rights is not permissible. Movants’ objection is, then, well taken and should be sustained. Debtor also contends that he may continue the land contract arrangement pursuant to §§ 1322(b)(3), (5) and (10). Subsection (3) provides that the plan may “provide for the curing or waiving of any default.” 11 U.S.C. § 1322(b)(3). This subsection, however, only allows a plan to cure a default; it does not authorize the curing of a default without regard to the terms of the contract. 5 Collier on Bankruptcy If 1322.07, at 1322-16 (15th ed. 1987). Furthermore, When Congress empowered Chapter 13 debtors to “cure defaults,” we think Congress intended to allow mortgagors to “deaccelerate” their mortgage and reinstate its original payment schedule.... [W]e think that the power to cure must comprehend the power to “de-accelerate.” This follows from the concept of “curing a default.” A default is an event in the debtor-creditor relationship which triggers certain consequences— here, acceleration. Curing a default commonly means taking care of the triggering event and returning to pre-default conditions. Bosteder, 59 B.R. at 882 (quoting In re Taddeo, 685 F.2d 24 (2d Cir.1982)). As previously stated, the terms of the parties’ land contract provided for payment in full of the unpaid principal balance on March 1, 1987. This term is not an acceleration provision which would permit Debtor the opportunity to cure the amount due movants. Instead, it is a provision with which Debtor must comply. Debtor may not disregard this provision. Debtor also cites subsection (5) in support of its plan. That section states that a plan may: (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while" }, { "docid": "7731493", "title": "", "text": "Section 1322(b)(2), unlike sections 1322(b)(3) and (b)(5), does not allow for the curing of a default. Section 1322(b)(2) does permit modification of secured claims, but any plan of modification must, under section 1322(c), provide for payments over a period of no longer than five years. Debtors’ proposed plan does not contemplate repayment of the entire judgment within the period of the plan but, instead, contemplates payment only of mortgage arrearages. Debtors’ plan is thus dependent upon a cure of their default and reinstatement of their mortgage, remedies not available under the terms of section 1322(b)(2). Sections 1322(b)(3) and (b)(5) have been the main focus of most courts in resolving cases involving Chapter 13 debtors. The leading case permitting cure and reinstatement is In re Taddeo, 685 F.2d 24 (2d Cir.1982). The Taddeo court held that the limitation against “modification” of mortgage liens under section 1322(b)(2) did not restrict a debtor’s right to “cure” a mortgage default under section 1322(b)(3) and (b)(5). Id. at 27-28. The Taddeo court explained: When Congress empowered Chapter 13 debtors to “cure defaults,” we think Congress intended to allow mortgagors to “deaecelerate” their mortgage and reinstate its original payment schedule. We so hold for two reasons. First, we think that the power to cure must comprehend the power to “de-accelerate.” This follows from the concept of “curing a default.” A default is an event in the debtor-creditor relationship which triggers certain consequences — here, acceleration. Curing a default commonly means taking care of the triggering event and returning to pre-default conditions. The consequences are thus nullified. This is the concept of “cure” used throughout the Bankruptcy Code.... Secondly, we believe that the power to “cure any default” granted in § 1322(b)(3) and (b)(5) is not limited by the ban against “modifying” home mortgages in § 1322(b)(2) because we do not read “curing defaults” under (b)(3) or “curing defaults and maintaining payments” under (b)(5) to be modifications of claims. 685 F.2d at 26-27. The Taddeo court stated that policy considerations strongly supported its holding: Conditioning a debtor’s right to cure on its having filed a Chapter 13" }, { "docid": "10216232", "title": "", "text": "that under § 1322(b), debtors could cure the default by paying the ar-rearages, and thereby reinstate the mortgage. The second circuit affirmed holding that “[w]hen Congress empowered Chapter 13 debtors to ‘cure defaults,’ we think Congress intended to allow mortgagors to ‘de-accelerate’ their mortgage and reinstate its original payment schedule.” Taddeo, 685 F.2d at 27. It concluded that § 1322(b)(2) which prevents a plan from modifying a principal residence mortgage, does not preclude the curative measures contained in § 1322(b)(3). Modification of a claim refers to reduction in payments. Thus, curing a default and maintaining payments is not a modification of a claim. Id. at 28. “We believe that the power to ‘cure any default’ granted in § 1322(b)(3) and (b)(5) is not limited by the ban against ‘modifying’ home mortgages in § 1322(b)(2) because we do not read ‘curing defaults’ under (b)(3) or ‘curing defaults and maintaining payments’ under (b)(5) to be modifications of claims.” Id. at 26-27. The Fifth Circuit extended the Taddeo decision in Grubbs v. Houston First American Savings, 730 F.2d 236. That case involved a second mortgage on debtors’ principal residence. Debtors defaulted and their creditor accelerated into maturity the full balance of the note. After a detailed analysis of the legislative history of § 1322(b), the court held that a home-mortgagor debtor is not barred either “(a) from curing a pre-petition acceleration into maturity of the unpaid installments due upon his home mortgage, or (b) from proposing ... that all past due or matured amounts secured by his home mortgage be paid during the term of his plan, if approved by the court_” Id. at 237. Thus, the court found that there was no “modification” of a claim where a Chapter 13 plan provided for payment over 36 months of past matured amounts. Id. at 238. Finally, the Seventh Circuit has followed the Taddeo and Grubbs decisions, Matter of Clark, 738 F.2d 869 (6th Cir.1984), and held that under § 1322 a debtor is entitled to cure a default on a residential mortgage loan even though he filed a bankruptcy petition only after a" }, { "docid": "4688411", "title": "", "text": "plan, but which provided for a curative period of eighteen months. DISCUSSION The question before this court is whether the default of an accelerated debt may be cured by a debtor under Chapter 13 by the payment of pre-acceleration arrears and the reinstitution of the payment schedule under the mortgage, notwithstanding a state court judgment for foreclosure and sale of the mortgaged property. A recent decision by the United States Court of Appeals for the Second Circuit, In re Taddeo, 685 F.2d 24 (2d Cir.1982), addressed a remarkably similar question. As in the matter now before us, the bankruptcy judge in Taddeo confirmed the debtors’ plan which provided for curing of a default by de-acceleration, payment of pre-acceleration arrears and reinstatement of the original mortgage payment schedule. On Appeal, the Second Circuit affirmed, holding that: When Congress empowered Chapter 13 debtors to “cure defaults,” we think Congress intended to allow mortgagors to “de-accelerate” their mortgage and reinstate its original payment schedule. We so hold for two reasons. First, we think that the power to cure must comprehend the power to “de-accelerate”.... Secondly, we believe that the power to “cure any de-fault” granted in § 1332(b)(3) and (b)(5) is not limited by the ban against “modifying” home mortgages in § 1322(b)(2) because we do not read “curing defaults” under (b)(3) or “curing defaults and maintaining payments” under (b)(5) to be modifications of claims. Taddeo, supra, 685 F.2d at 26-27. The Bank argues that acceleration of the mortgage made the entire amount due prior to the date Debtors’ petition was filed and that pursuant to 11 U.S.C. § 1325(a) confirmation of the plan was improper unless the entire accelerated debt is to be paid over the term of the Debtors’ plan. Similarly, the Bank argues that the cure proposed by Debtors pursuant to 11 U.S.C. § 1322(b)(5) is unavailable because the accelerated debt herein was due prior to the plan’s curative period and that § 1322(b)(5) applies only to a series of deferred payment claims where the last payment is due after the last pay ment scheduled under the plan. The Debtors" }, { "docid": "10216231", "title": "", "text": "of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; ... (5) notwithstanding paragraph (2) of this Subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; .... 11 U.S.C. § 1322(b)(2), (3), and (5). Three circuit courts have recently interpreted this statute. In re Taddeo, 685 F.2d 24 (2d Cir.1982); Grubbs v. Houston First American Savings Association, 730 F.2d 236 (5th Cir.1984); and Matter of Clark, 738 F.2d 869 (7th Cir.1984). In Taddeo debtors defaulted on a long-term mortgage. The mortgagee accelerated the mortgage, declared its balance due immediately, and initiated foreclosure proceedings. Those proceedings were stayed when debtors filed a Chapter 13 petition. The bankruptcy court held that under § 1322(b), debtors could cure the default by paying the ar-rearages, and thereby reinstate the mortgage. The second circuit affirmed holding that “[w]hen Congress empowered Chapter 13 debtors to ‘cure defaults,’ we think Congress intended to allow mortgagors to ‘de-accelerate’ their mortgage and reinstate its original payment schedule.” Taddeo, 685 F.2d at 27. It concluded that § 1322(b)(2) which prevents a plan from modifying a principal residence mortgage, does not preclude the curative measures contained in § 1322(b)(3). Modification of a claim refers to reduction in payments. Thus, curing a default and maintaining payments is not a modification of a claim. Id. at 28. “We believe that the power to ‘cure any default’ granted in § 1322(b)(3) and (b)(5) is not limited by the ban against ‘modifying’ home mortgages in § 1322(b)(2) because we do not read ‘curing defaults’ under (b)(3) or ‘curing defaults and maintaining payments’ under (b)(5) to be modifications of claims.” Id. at 26-27. The Fifth Circuit extended the Taddeo decision in Grubbs v. Houston First American Savings, 730 F.2d" }, { "docid": "6460031", "title": "", "text": "1976) (per curiam); In re Howard, 344 F.Supp. 1138 (E.D.Ark.1971). Our reading of the statute disposes of Di Pierro’s major contentions on appeal. Di Pierro argues that the Taddeos cannot use § 1322(b)(5) to cure their default and maintain payments on her mortgage because (b)(5) applies only to claims whose last payment is due after the last payment under the plan is due. Di Pierro maintains her acceleration of the mortgage makes all payments due now. See In re Williams, 11 B.R. 504 (Bkrtcy.S.D.Texas 1981); In re Paglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981). But we hold that the concept of “cure” in § 1322(b)(5) contains the power to de-accelerate. Therefore the application of that section de-accelerates the mortgage and returns it to its 15-year maturity. Alternatively, we hold that the ban on “modification” in § 1322(b)(2) does not limit the Taddeos’ exercise of their curative powers under either § 1322(b)(3) or (b)(5). Therefore the Taddeos may first cure their default under (b)(3) and then maintain payments under (b)(5). See In re Soderlund, 7 B.R. 44 (Bkrtcy.S.D.Ohio 1980), rev’d, 18 B.R. 12 (S.D.Ohio 1981). Di Pierro also argues that under New York law the Taddeos cannot “cure” an accelerated mortgage without paying the full amount of the claim, and further asserts that the Bankruptcy Code does not empower the Taddeos to override New York law. She asserts that Congress explicitly gave corporate debtors the power to cure defaults without regard to acceleration by passing 11 U.S.C. § 1124(2), and concludes that the absence of similar language in § 1322(b) indicates that Chapter 13 debtors cannot cure defaults unless they also cure acceleration. See In re Williams, 11 B.R. 504 (Bkrtcy.S.D.Tex.1981); In re Paglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981). The bankruptcy court took the opposite tack, reasoning that Congress, having provided corporate debtors with curative powers under § 1124(2), must have intended similar powers to be exercised by consumer debtors under § 1322(b) as consumers are more favored by Chapter 13 than corporate debtors are by Chapter 11. Both rationales mistake the import of § 1124. That section determines who has the right to" }, { "docid": "221687", "title": "", "text": "§ 1322(b)(2), it could nevertheless provide for the payment from future income of previously non-accelerated matured amounts that had become due prior to the filing of the Chapter 13 petition, §§ 1322(a), 1327, 1328(a). Id. 730 F.2d at 247. Therefore, in this judicial circuit the issue is settled that subsection (b)(3) may be used to cure a default on a short term home mortgage. It also is settled that the power to cure under subsection (b)(3) includes the power to deaccelerate a claim that was accelerated prepetition. Unfortunately, whether the Debtor’s proposed treatment of Copiah Bank’s claim, which does not involve a deacceleration, constitutes a permissible “cure” under subsection (b)(3) or an impermissible “modification” under subsection (b)(2) is not so easily answered. In reaching its decision, the Grubbs court relied on Di Pierro v. Taddeo (In re Taddeo), 685 F.2d 24 (2nd Cir.1982) wherein the court held that the term “cure” included the ability to deaccelerate a long term mortgage that had been accelerated prepetition, stating: When Congress empowered Chapter 13 debtors to “cure defaults,” we think Con gress intended to allow mortgagors to “deaccelerate” their mortgage and reinstate its original payment schedule. We so hold for two reasons. First, we think that the power to cure must comprehend the power to “de-accelerate.” This follows from the concept of “curing a default.” A default is an event in the debtor-creditor relationship which triggers certain consequences-here, acceleration. Curing a default commonly means taking care of the triggering event and returning to pre-default conditions. The consequences are thus nullified. This is the concept of “cure” used throughout the Bankruptcy Code. Secondly, we believe that the power to “cure any default” granted in § 1322(b)(3) and (b)(5) is not limited by the ban against “modifying” home mortgages in § 1322(b)(2) because we do not read “curing defaults” under (b)(3) or “curing defaults and maintaining payment” under (b)(5) to be modifications of claims. Id. at 26-27. Following the Grubbs decision, the Seventh Circuit Court of Appeals decided Matter of Clark, 738 F.2d 869 (7th Cir.1984), which also involved a chapter 13 plan that proposed" }, { "docid": "16834227", "title": "", "text": "purchaser named in such certificate, without the necessity of any further proceedings or instruments.” F.S.A. Section 702.02(3). Therefore, Florida law provides for the divestment of title from a mortgagor to a purchaser at public sale only after there has been proper transfer of title to the purchaser. 22 Fla.Jur.2d “Mortgages,” Section 365. Consequently, in the present case, the argument made by the mortgagee, that the Chapter 13 Debtor has no property rights to “resurrect” once a public auction has occurred, must fall, as there has been no divestment of title from the Debtor to the mortgagee as is required under Florida law. The mortgagee’s second objection to the Debtor’s Plan is that, even if the Debtor has the right to redeem the mortgage, the redemption must be a lump-sum payment of the accelerated balance due under the mortgage. Several Courts have grappled with the treatment of accelerated mortgages under Chapter 13 Bankruptcies. This issue has not been answered by the Eleventh Circuit Court of Appeal, whose decisions govern this Court; but the issue has been addressed by the Second Circuit Court of Appeal in the case of In Re Taddeo, 685 F.2d 24, 9 B.C.D. 556 (2nd Circuit, 1982). The facts of the Taddeo ease differ somewhat from the present case. In Taddeo, the mortgagee had accelerated the balance of the mortgage under State law, but had not obtained a final judgment of foreclosure and sale. The Second Circuit, in a well reasoned opinion, tracked the rights of a Chapter 13 debtor under Bankruptcy Code Section 1322(b). The Court found that, “When Congress empowered Chapter 13 debtors to ‘cure defaults,’ we think Congress intended to allow mortgagors to ‘de-accelerate’ their mortgages and reinstate its original payment terms.” (Id. at 26, 9 B.C.D. at 558). The Second Circuit further found that, “... the power to ‘cure any default’ granted in Section 1322(b)(3) and (b)(5) is not limited by the ban against ‘modifying’ home mortgages in Section 1322(b)(2) because we do not read ‘curing defaults’ under (b)(3) or ‘curing and maintaining payments’ under (b)(5) to be modifications of claims.” (Id. at 27," }, { "docid": "15923131", "title": "", "text": ".thus nullified. This is the concept of ‘cure’ used throughout the Bankruptcy Code. Secondly, we believe that the power to ‘cure any default’ granted in § 1322(b)(3) and (b)(5) is not limited by the ban against ‘modifying’ home mortgages in § 1322(b)(2) because we do not read ‘curing defaults’ under (b)(3) or ‘curing defaults and maintaining payments’ under (b)(5) to be modifications of claims.” Id. at 241 (quoting In re Taddeo, 685 F.2d at 25-26). Furthermore, the court interpreted the language in § 1322(b)(5) “on which the last payment is due” to mean “on which the last payment before acceleration is due.” Id. at 241 n. 7. The court ultimately concluded that neither the curing of the default proposed under the plan nor the plan’s provision for payment of the matured amount on the debt “may be regarded as proposals to ‘modify’ [the debt- or’s] home-mortgage indebtedness” which is prohibited under § 1322(b). Other courts appear to be in agreement that “[i]f a creditor holding a claim secured solely by a security interest in real property that is the debtor’s principal residence accelerates payments on the debt as a result of the debtor’s default, then the plan may decelerate the payments, reinstate the regular payments, and cure the default.” Butler, Bankruptcy Handbook, ¶ 12.42 at p. 12-43 (1997 & Supp.1998-2000); Jim Walter Homes, Inc. v. Spears (In re Thompson), 894 F.2d 1227 (“[A]ll circuits that have addressed the issue have agreed that contractual acceleration of mortgage debt upon default does not end the debtors’ right to cure the mortgage default in bankruptcy by paying the amount of the original default, rather than the entire accelerated debt.”); In re Roach, 824 F.2d 1370, 1373 (3d Cir.1987) (“Thus far, each court of appeals that has decided whether a home mortgage default may be cured after contractual acceleration of the full mortgage debt has provided an affirmative answer.”). Thus, this Court concludes that the fact that the debt to BNY was accelerated due to Debtor’s default does not prohibit the curing of such default through the Chapter 13 Plan. Furthermore, the Court notes" }, { "docid": "1767716", "title": "", "text": "In re McSorley was going to receive 100 percent of the money due to it plus accruing interest up to the time of payment. The court in In re McSorley relied upon the case of In re Simpkins, 16 B.R. 956 (Bkrtcy.E.D.Tenn. 1982), in stating: the protection of section 1322(b)(2) was intended to prevent the application of the ‘cramdown’ provision of the Bankruptcy Code to the holder of a claim secured solely by residential real estate, [citation omitted] It was not intended to be applied to situations like the present plan so as to work an injustice on the debtors’ attempt to keep their home. The Second Circuit has recently agreed with this interpretation and stated: ‘... we believe that the power to ‘cure any default’ granted in § 1322(b)(3) and (b)(5) is not limited by the ban against ‘modifying’ home mortgages in § 1322(b)(2) because we do not read ‘curing defaults’ under (b)(3) or ‘curing defaults and maintaining payments’ under (b)(5) to be. modifications of claims.’ In re Taddeo, 685 F.2d 24, 9 B.C.D. 556, 559 (2 Cir.1982). In that case the court held that debtors could cure defaults and de-accelerate their secured long-term residential debt which had been accelerated under the terms of their agreement, prior to the filing of the Chapter 13 Petition. 24 B.R. at 798. Similarly, the Second Circuit Court of Appeals in the matter of In re Taddeo, 685 F.2d 24 (2d Cir.1982), permitted debtors in a Chapter 13 case to cure defaults under a purchase money mortgage and to continue making monthly mortgage payments, despite the mortgagee’s prepetition acceleration of the mortgage. The In re Taddeo court reasoned that the power to cure mortgage arrears granted to debtors under 11 U.S.C. § 1322(b) includes the power to “de-accelerate” the mortgage and reinstate its original payment schedule. 685 F.2d at 26. The In re Taddeo court further determined that the power to cure any default granted by Sections 11 U.S.C. § 1322(b)(3) and (b)(5) is not restricted by 11 U.S.C. § 1322(b)(2), which forbids the modification of security interests in a debtor’s principal residence." }, { "docid": "4688412", "title": "", "text": "must comprehend the power to “de-accelerate”.... Secondly, we believe that the power to “cure any de-fault” granted in § 1332(b)(3) and (b)(5) is not limited by the ban against “modifying” home mortgages in § 1322(b)(2) because we do not read “curing defaults” under (b)(3) or “curing defaults and maintaining payments” under (b)(5) to be modifications of claims. Taddeo, supra, 685 F.2d at 26-27. The Bank argues that acceleration of the mortgage made the entire amount due prior to the date Debtors’ petition was filed and that pursuant to 11 U.S.C. § 1325(a) confirmation of the plan was improper unless the entire accelerated debt is to be paid over the term of the Debtors’ plan. Similarly, the Bank argues that the cure proposed by Debtors pursuant to 11 U.S.C. § 1322(b)(5) is unavailable because the accelerated debt herein was due prior to the plan’s curative period and that § 1322(b)(5) applies only to a series of deferred payment claims where the last payment is due after the last pay ment scheduled under the plan. The Debtors rely upon the curative powers set forth at 11 U.S.C. § 1322, claiming that the limited power to modify as set forth at § 1322(b)(2) with respect to secured claims against real estate is to be read together with the broad curative powers set forth at §§ 1322(b)(3) and (5). We find that the decision of the Second Circuit in Taddeo compels our affirmance here. In that case, the court reviewed at length the legislative history supporting its interpretation of the curative powers under § 1322(b) (Taddeo, supra, 685 F.2d at 27-28) and discussed the distinction between the power to modify a claim (reduce payments) and to cure a claim (maintain payments) (Id. at 27) in reaching the conclusion that the concept of cure contains the power to de-accelerate (Id. at 27). The court also held alternatively, “that the ban on ‘modification’ in § 1332(b)(2) does not limit the Taddeos’ exercise of their curative powers under either § 1322(b)(3) or (b)(5).” (Id.) We refer to the persuasive reasoning of the court in Taddeo without restating" }, { "docid": "4688410", "title": "", "text": "The Bank objected to such de-accel-eration on the grounds that cure by de-ac-celeration is not permitted under 11 U.S.C. § 1322(b) and that confirmation of the plan was therefore improper under U.S.C. § 1325(a)(1) and (5). The Bank argued that the entire accelerated amount of the default judgment must be paid over the term of the plan. The bankruptcy court held that Chapter 13 debtors may attempt, pursuant to 11 U.S.C. § 1322(b)(5), to cure pre-acceleration mortgage arrears and reinstate the original payment schedule of their mortgage, notwithstanding the existence of a state court judgment of foreclosure and sale. The court\" found that the three year curative period, as originally proposed by the Debtors, was not “reasonable” within the meaning of 11 U.S.C. § 1322(b)(5) and that, under the circumstances, a reasonable curative period could not extend beyond eighteen months. In re Acevedo, 9 B.R. 852, 4 C.B.C.2d (MB) 178. (Bkrtcy.E.D.N.Y.1981). On May 27, 1981 the bankruptcy court approved Debtors’ amended plan which de-ac-celerated the payments due under the mortgage, as proposed in the original plan, but which provided for a curative period of eighteen months. DISCUSSION The question before this court is whether the default of an accelerated debt may be cured by a debtor under Chapter 13 by the payment of pre-acceleration arrears and the reinstitution of the payment schedule under the mortgage, notwithstanding a state court judgment for foreclosure and sale of the mortgaged property. A recent decision by the United States Court of Appeals for the Second Circuit, In re Taddeo, 685 F.2d 24 (2d Cir.1982), addressed a remarkably similar question. As in the matter now before us, the bankruptcy judge in Taddeo confirmed the debtors’ plan which provided for curing of a default by de-acceleration, payment of pre-acceleration arrears and reinstatement of the original mortgage payment schedule. On Appeal, the Second Circuit affirmed, holding that: When Congress empowered Chapter 13 debtors to “cure defaults,” we think Congress intended to allow mortgagors to “de-accelerate” their mortgage and reinstate its original payment schedule. We so hold for two reasons. First, we think that the power to cure" }, { "docid": "15923130", "title": "", "text": "claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due.” In the case of Grubbs v. Houston First American Savings Assoc., 730 F.2d 236 (5th Cir.1984), the court was faced with the exact issue: “whether a bankruptcy court may decline to approve a Chapter 13 plan solely because a debtor proposes to pay off in installments during the term of the plan past-due amounts on a promissory note that was properly accelerated and became fully due.” Id. at 237. The court analyzed the legislative history of § 1322(b) and, following the holding in In re Taddeo, 685 F.2d 24 (2d Cir.1982), it noted that: “First, we think that the power to cure must comprehend the power to ‘de-ac-celerate.’ This follows from the concept of ‘curing a default.’ A default is an event in the debtor-creditor relationship which triggers certain consequences— here, acceleration. Curing a default commonly means taking care of the triggering event and returning to pre-de-fault conditions. The consequences are .thus nullified. This is the concept of ‘cure’ used throughout the Bankruptcy Code. Secondly, we believe that the power to ‘cure any default’ granted in § 1322(b)(3) and (b)(5) is not limited by the ban against ‘modifying’ home mortgages in § 1322(b)(2) because we do not read ‘curing defaults’ under (b)(3) or ‘curing defaults and maintaining payments’ under (b)(5) to be modifications of claims.” Id. at 241 (quoting In re Taddeo, 685 F.2d at 25-26). Furthermore, the court interpreted the language in § 1322(b)(5) “on which the last payment is due” to mean “on which the last payment before acceleration is due.” Id. at 241 n. 7. The court ultimately concluded that neither the curing of the default proposed under the plan nor the plan’s provision for payment of the matured amount on the debt “may be regarded as proposals to ‘modify’ [the debt- or’s] home-mortgage indebtedness” which is prohibited under § 1322(b). Other courts appear to be in agreement that “[i]f a creditor holding a claim secured solely by a security interest in real" }, { "docid": "13796330", "title": "", "text": "paying past-due amounts on his home-mortgage through periodic payments over the term of his Chapter 13 plan, if approved by the bankruptcy court. A contrary construction was reached by the Second Circuit in In re Taddeo, 685 F.2d 24 (2d Cir.1982), the only circuit court appellate decision thus far on the issue. There, the Chapter 13 petitioners were permitted to cure the default by payments of the arrears made pursuant to their plan, despite the home-mortgage debt’s pre-bankruptcy acceleration under state law, and to reinstate the original payment schedule of their long-term home mortgage. In so holding, with succinct summary of the legislative history of the provision and the meaning of the terms “curing a default” and “modify” as so reflected, 685 F.2d at 27-28 {see also III infra), the Second Circuit concluded: First, we think that the power to cure must comprehend the power to “de-accel-erate.” This follows from the concept of “curing a default.” A default is an event in the debtor-creditor relationship which triggers certain consequences— here, acceleration. Curing a default commonly means taking care of the triggering event and returning to pre-default conditions. The consequences are thus nullified. This is the concept of “cure” used throughout the Bankruptcy Code. Secondly, we believe that the power to “cure any default” granted in § 1322(b)(3) and (b)(5) is not limited by the ban against “modifying” home mortgages in § 1322(b)(2) because we do not read “curing defaults” under (b)(3) or “curing defaults and maintaining payments” under (b)(5) to be modifications of claims. Id. at 26-27 (emphasis the court’s). In construing § 1322(b), Taddeo rejected a contention similar to that raised by the present mortgage creditor that state law must determine the effect of the creditor’s acceleration and the ability of a debtor to cure his default. 685 F.2d at 28-29. It found that, in enacting § 1322(b), Congress had intended to permit cure in bankruptcy proceedings as authorized by the federal code. Id. Aside from the technically sound reasons for its statutory construction, Taddeo additionally pointed out: Policy considerations strongly support this reading of the statute. Conditioning a" } ]

[ { "docid": "11395008", "title": "", "text": "Lavoie’s base offense level as a result of the magnitude of the victim’s loss associated with the offense. Lavoie' notes that because the bank repossessed and sold the Jaguar, the bank lost only $6,000 as a result of his false application and the $29,614.10 loan he received. As the bank’s actual loss was between $5,000 and $10,000, Lavoie contends that the district court should have increased his offense level by only two levels. U.S.S.G. § 2Fl.l(b)(l)(C). According to Lavoie, his adjusted offense level therefore should have been eight, and he should have faced a sentencing range of zero to six months imprisonment. We address first this Court’s jurisdiction over Lavoie’s appeal. The government contends that because the sentence imposed by the district court is within the range proposed by Lavoie, this Court lacks jurisdiction over Lavoie’s claim under 18' U.S.C. § 3742(a). We are not persuaded.- It is well-settled that a defendant may only appeal (1) a sentence imposed in violation of law, (2) a sentence imposed as a result of an incorrect application of the guidelines, (3) an upward departure from the applicable guideline range, or (4) a plainly unreasonable sentence imposed for an offense for which there is no sentencing guideline. 18 U.S.C. § 3742(a). In construing this section, this Court has found that “a district court’s refusal to depart downward from a sentence within the properly computed guideline range is not appealable.” United States v. Pickett, 941 F.2d 411, 417-18 (6th Cir.1991). This Court-does have jurisdiction, however, over a defendant’s appeal of a sentence within the guideline range if the defendant identifies “a specific legal error in the formulation of [the] sentence.” United States v. Lovins, 993 F.2d 1244, 1245-46 (6th Cir.1993) (citing United States v. Fuente-Kolbenschlag, 878 F.2d 1377 (11th Cir.1989)). In Fuente-Kolbenschlag, a panel of the Eleventh Circuit noted that the twenty-one-month term of imprisonment imposed by the district court in that case was also within the sentencing range advocated by the defendant. Fuente-Kolbenschlag, 878 F.2d at 1379. In considering whether it had jurisdiction over the appellant’s challenge to his sentence, the panel initially noted" } ]

[ { "docid": "23678730", "title": "", "text": "during and in relation to the drug trafficking offense. A-though the plea agreement provided that Ruelas waived his right to appeal issues relating to his guilt on these offenses, Ruelas now seeks to vacate his conviction on the firearm offense because, he contends, the indictment failed to charge him with an offense. Ruelas also argues the district court erred in determining his sentence because the court refused to grant him a reduction in his base offense level for being a minor or minimal participant. Finally, Ruelas argues the court erred by refusing to depart downward pursuant to Sentencing Guideline Section 4A1.3. Although we lack authority to review Rue-las’s downward departure argument, we have jurisdiction under 28 U.S.C. § 1291 to review Ruelas’s first two arguments, and we affirm. FACTS On January 12, 1995, Ruelas sold fifteen ounces of methamphetamine to an undercover police officer. Officers immediately ar rested Ruelas and, during a search incident to his arrest, they discovered a loaded .380 caliber semi-automatic weapon in the waistband of his trousers. A superseding indictment charged Ruelas with three counts: (1) possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1); (2) use or carry of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (3) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Pursuant to a plea agreement, Ruelas pleaded guilty to counts one and two. The plea agreement provided: In the present case the defendant expressly waives any rights he may have to appeal the adjudication of his guilt and/or the withdrawal of his plea of guilty. The defendant does, however, expressly reserve the right to appeal any issues relating to his sentencing, including any issues related to the application of the United States Sentencing Guidelines. For count one, the district court determined that Ruelas’s base offense level was 26 and his criminal history score was VI, resulting in a guideline range of 110 to 137 months. The district court sentenced Ruelas to 110 months on count one and" }, { "docid": "7380105", "title": "", "text": "suggested, contrary to the language of the agreement, that Goodman would retain the right to appeal her sentence if he concluded that either an upward departure or an offense level different from the stipulated level was appropriate. Finally, we note that the discrepancy between the sentence imposed — thirty months in prison — and the predicted sentencing range — ten to sixteen months — is substantial. The sentence im posed is nearly twice as long as the high-end of the predicted guideline range. In light of all of these circumstances, we will not enforce the broad form of waiver in this ease, one that would subject the defendant to “a virtually. unbounded risk of error or abuse by the sentencing court.” Rosa, 123 F.3d at 99. And, as in Martinez-Rios, we conclude that the appropriate remedy is to sever the waiver from the remainder of the plea agreement and consider the merits of Goodman’s sentencing appeal. See Martinez-Rios, 143 F.3d at 669. B. Reduction for Role in the Offense Section 3B1.2 of - the Guidelines provides for a four-level downward adjustment if the defendant was''a minimal participant in criminal activity, and a two-level downward adjustment where the defendant was a minor participant. Goodman contends that the District Court erred when it found that her role in the offense was neither minor nor minimal. We review such factual determinations for clear error. See United States v. Martin, 78 F.3d 808, 814 (2d Cir.1996). The District Court ruled that because Goodman was charged with only a small part of the Wymer scheme and her base offense level was calculated on the basis of her limited role, the further benefit of a minor role reduction was not warranted. We have upheld the denial of a minor role adjustment in the analogous context of a conspiracy conviction, where a defendant’s base offense level is calculated on the basis of his somewhat limited role in the conspiracy. See United States v. Lewis, 93 F.3d 1075, 1085 (2d Cir.1996). Here, Goodman was charged and convicted on the basis of her role in fraudulently confirming only one" }, { "docid": "23421361", "title": "", "text": "of amphetamine. Joint Appendix (“J.A.”) at 146 (PSR). The PSR calculated Treadway’s base offense level at 32 and then reduced the total offense level to 29 after a three-level reduction for acceptance of responsibility. Based on his criminal history category of IV, his recommended sentence range was between 121 and 151 months. At sentencing, the government moved for a downward departure pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 5K1.1 for Treadway’s cooperation. The district court granted the motion, departed downward three levels, and lowered Treadway’s sentence range to 92-115 months. Treadway was ultimately sentenced to 100 months of imprisonment and five years of supervised release. Final judgment was entered on August 9, 2000, and Treadway timely filed a pro se notice of appeal. Treadway’s appeal raises two issues. First, Treadway argues that the PSR erroneously states that the plea agreement stipulated to the quantity of drugs contained therein and that the district court improperly relied on this misleading statement in sentencing. Treadway asserts that he never stipulated to the drug amount in the plea agreement and that the agreement specifically preserved his right “to argue any mitigating factors” and “to propose any alternatives to incarceration available under the Sentencing Guidelines.” J.A. at 58 (Plea Agreement). He also argues that the district court improperly held him responsible for the entire amount of drugs involved in Pinkley’s conspiracy because the court never made particularized findings as to the quantity of drugs individually attributable to him. Thus, Treadway argues that his sentence was too high and that his base offense level should have been calculated at 16. Second, he asserts that his Sixth Amendment right to counsel was violated when the court permitted Agee to withdraw from representation. Treadway’s primary objection is a due process claim that a hearing should have been held on Agee’s withdrawal where Treadway would have been entitled to voice his objections to the removal of his chosen attorney. II. ANALYSIS A. Standard of Review This court reviews a sentencing court’s determination of drug quantity for clear error. See United States v. Hough, 276 F.3d 884, 891 (6th" }, { "docid": "2474877", "title": "", "text": "trial court error. We have care fully reviewed the trial transcript and find the remainder of Womack’s arguments to be without merit. III. In accordance with the terms of his plea agreement, Donald Caraway pleaded guilty to one count of conspiring to distribute cocaine base and one count of conspiring to launder drug proceeds. In exchange, the government dropped three additional counts in the indictment, urged the court to give Caraway a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, and moved the court under U.S.S.G. § 5K1.1 for a downward departure from the guideline sentencing range based on Caraway’s substantial assistance to the government. At sentencing, Caraway moved the court to depart not only below the guideline range, but even below the statutory minimum sentence of twenty years. Finding that the government had not made a substantial assistance motion under 18 U.S.C. § 3553(e), the district court held that it had no authority to depart below the statutory minimum and sentenced Caraway to twenty-years’ imprisonment followed by ten years of supervised release. On appeal, Caraway challenges the district court’s refusal to depart below the statutorily mandated minimum sentence. Initially, Caraway argues that the district court had authority to depart below the statutory minimum because the government had moved for a downward departure based on substantial assistance under § 5K1.1 of the sentencing guidelines. Our holding in United States v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 375, 121 L.Ed.2d 287 (1992), controls this issue. In Rodriguez-Morales, we held that guideline section 5K1.1 and statutory section 3553(e) provide two separate, independent grounds for departing from the appropriate guideline range. Id. at 1447. Accordingly, we further held that a sentencing court may depart below the statutory minimum sentence only when the government has made a motion specifically under section 3553(e). Id. In this case, because the government moved for a departure only under guideline section 5K1.1 and not under section 3553(e), the district court lacked authority to depart below the mandatory minimum sentence of twenty years. Cf. United States v. Hawley, 984 F.2d" }, { "docid": "7204735", "title": "", "text": "DAVID R. THOMPSON, Circuit Judge: Jose Natalio Martinez-Guerrero is legally blind. He pled guilty to one count of aiding and abetting possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). At his sentencing hearing, he asked the court to depart downward from the low end of the applicable guideline range of 27-33 months. He contended that his blindness was an “extraordinary physical impairment” for which a downward departure was authorized by Sentencing Guideline § 5H1.4. The district court determined that the Bureau of Prisons could accommodate blind prisoners such as Martinez-Guerrero, and for that reason found that he did not suffer from an “extraordinary physical impairment” which would permit the court to depart downward. Concluding that it had no discretion under the guidelines to depart downward, the court imposed a prison sentence of 27 months. Martinez-Guerrero appeals. We affirm. JURISDICTION The government argues we. lack jurisdiction to review Martinez-Guerrero’s sentence because the district court exercised its discretion when it refused to depart downward. See United States v. Morales, 898 F.2d 99, 102 (9th Cir.1990). We reject this argument because the record does not support it. The record plainly shows that the district court refused to depart downward because, according to its interpretation of section 5H1.4 and case law on which it relied, it had no discretion to depart downward. “We have jurisdiction to review a district court’s refusal to depart downward based on its interpretation of the law as barring such departure.” United States v. Goroza, 941 F.2d 905, 908 (9th Cir.1991). MERITS The applicable subsection of the policy statement for U.S.S.G. § 5H1.4 reads: Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g. in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment. This text is a clarification of the previous section 5H1.4, and became effective on November 1, 1991. See U.S.S.G.App." }, { "docid": "23076035", "title": "", "text": "district judge chooses to sentence within the range prescribed by the Sentencing Guidelines, an error in their calculation cannot be harmless. Moreover, even where he chooses to impose a sentence based on the considerations prescribed in 18 U.S.C. § 3553, he must take into account the range prescribed by the Sentencing Guidelines. See 18 U.S.C. § 3553(a)(4) (2006). Consequently, the Guidelines range must be calculated correctly in the first instance. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). Indeed, “[a] misinterpretation of the Guidelines by a district court ‘effectively means that [the district court] has not properly consulted the Guidelines.’ ” Crawford, 407 F.3d at 1179, quoting United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir.2005) (alterations in original). Because we cannot say that an error in the application of the Sentencing Guidelines here would be harmless, we proceed to address Barner’s challenges to his sentence in turn. The Withdrawal of the § 5K1.1 Motion While four of Barner’s five arguments with regard to the sentence involve objections to the manner in which the district judge calculated the guidelines, his first objection does not directly do so. Instead, it goes to the issue of his entitlement to a downward departure. Specifically, Barner argues that the Assistant U.S. Attorney retaliated against him for exercising his Sixth Amendment right to a jury trial by withdrawing the previously-filed § 5K1.1 downward departure motion. The record shows that, on July 12, 2002, Barner pled guilty to two counts of the fourth superseding indictment — conspiracy to possess drugs with intent to distribute, and possession of firearms in furtherance of that drug conspiracy. The plea agreement contained the following provisions: Based on the substantial assistance the defendant has provided in this case, and pursuant to Section 5K1.1 of the Sentencing Guidelines, the Government will file a motion at sentencing recommending that the Court depart downward from the otherwise applicable offense level and will recommend that the defendant be sentenced to a term of imprisonment of 144 months. The defendant agrees to continue to cooperate completely and truthfully" }, { "docid": "22440416", "title": "", "text": "that, because he cooperated with the government, the district court abused its discretion by refusing to grant him a downward departure pursuant to U.S.S.G. § 5K2.0. See Pruitt’s Br. at 3. This court has held that a district court’s discretionary refusal to depart downward is generally not appealable, unless the district court mistakenly believed it did not have legal authority to depart downward. See United States v. Ebolum, 72 F.3d 35, 37 (6th Cir.1995); see also United States v. Isom, 992 F.2d 91, 94 (6th Cir.1993); 18 U.S.C. § 3742(a)(3) (limiting defendant’s right to appeal sentence to cases where sentence is “greater than the sentence specified in the applicable guideline range”). Pruitt does not claim that the district court thought it did not have discretion to make a downward departure. Additionally, Pruitt does not contest the fact that the government’s refusal to recommend a downward departure was based on Pruitt’s withholding some information concerning his involvement in drug trafficking, in violation of his plea agreement. Pruitt also does not allege that the government’s refusal to recommend a departure was motivated by any unconstitutional reasons. See Wade v. United States, 504 U.S. 181, 186, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992); United States v. Johnson, 46 F.3d 19, 21 (6th Cir.1995). We therefore affirm the district court’s sentence of Pruitt. G. CORRECTION OF CLAY’S SENTENCE Clay argues that because his petition to vacate his sentence pursuant to 28 U.S.C. § 2255 only addressed a single count, the § 924(c) count, the district court did not have jurisdiction to reopen and resentence him on an unchallenged count of his indictment. Clay also argues that the district court’s resentencing based on his possession of a firearm constitutes a violation of his due process rights and the Double Jeopardy Clause. In Pasquarille v. United States, 130 F.3d 1220 (6th Cir.1997), this court flatly rejected all of these same challenges and joined every other circuit court in upholding re-sentencing under such circumstances. Under Pasquarille, the district court properly resentenced Clay pursuant to U.S.S.G. § 2D1.1(b)(1). III. CONCLUSION For the reasons stated above, we AFFIRM the" }, { "docid": "20364617", "title": "", "text": "ROSZKOWSKI, District Judge. This is an appeal from the judgment of the district court in imposing sentence on the defendant. The defendant contends that the court erred in its interpretation of the sentencing guidelines. The defendant and William Michael Bais-den were indicted on a charge of possession of stolen goods that had crossed a state boundary in violation of 18 U.S.C. § 2315. On February 28, 1994, pursuant to a plea agreement, he entered a plea of guilty to the one count indictment. On April 26, 1994, the district court sentenced him to 12 months imprisonment. At sentencing, the district court applied the November, 1993, edition of the United States Sentencing Commission Guidelines Manual. (Dkt. No. 50, p. 5.) The district court adopted the amended guideline calculations of the Probation Office and found that the adjusted offense level was 10, which included a two level increase for more than minimal planning, pursuant to § 2Bl.l(b)(5)(A). (Id.) The district court found the applicable criminal history category to be IV, as it attributed three points each to the defendant’s 1984 convictions and one point to the driving while intoxicated offense. (Id.) However, the court departed downward to category III based on its finding that category IV overstated the seriousness of the defendant’s criminal record. (Id.) The resulting guideline range was 10-16 months, within which the court selected a sentence of 12 months. (App. p. 32-33.) This appeal followed. The defendant contends that his sentencing guidelines range was incorrectly determined due to two alleged errors committed by the district court. First, he claims that his correct criminal history category should have been III instead of IV because the driving while intoxicated offense (the one point attributable to which moved the defendant to category IV) was a local ordinance violation which, according to the defendant, should not count as a prior sentence under U.S.S.G. § 4A1.2. Second, the defendant asserts that the district court erred in finding that he had engaged in “more than minimal planning” as that term is defined in U.S.S.G. § 1B1.1, Application Note 1(f). On May 19, 1993, defendant was" }, { "docid": "21084036", "title": "", "text": "cannot be considered for purposes of § 2L1.2(b). The district court rejected this argument and added the 16 points to Ramos Gonzalez’s offense level. The court held that the plea agreement’s stipulation that Ramos Gonzalez would receive the 16-level enhancement precluded Ramos Gonzalez from arguing to the contrary. The court also rejected Ramos Gonzalez’s argument that only aggravated felonies less than 15-years old could be considered for purposes of the enhancement. Once his sentence was enhanced, Ramos Gonzalez argued that the court should depart downward from the sentencing range imposed by the guidelines. According to Ramos Gonzalez, a downward departure was appropriate under § 5K2.0 because a 16-level enhancement overrepresents the seriousness of his offense given the age of the aggravated felony conviction. The court refused to depart downward. It also refused to depart upward, however, as recommended in the PSR. In the end, the court sentenced Ramos Gonzalez to 63 months in prison, the high end of the guideline sentencing range. Ramos Gonzalez now appeals his sentence. He argues first that the court erred by enhancing his sentence by 16 levels because the aggravated felony on which that enhancement was based was over 15-years old. He also argues that the court erred by denying his motion for a downward departure. II. Before we may address the propriety of the aggravated felony enhancement, we must determine whether the plea agreement precludes Ramos Gonzalez from challenging it. The government argues that Ramos Gonzalez is bound because the plea agreement stipulates that the 16-level enhancement applies. The district court agreed with the government and held that the plea agreement precluded Ramos Gonzalez from arguing against the enhancement. We review the district court’s interpretation of a plea agreement for clear error. United States v. Lovell, 81 F.3d 58, 61 (7th Cir.1996). Ramos Gonzalez counters that the plea agreement specifically allows him to argue that the application of the 16-level enhancement under § 2L1.2(b)(2) is erroneous. The plea agreement states: Errors in calculations or interpretation of any of the guidelines may be corrected by either party prior to sentencing. The parties may correct these" }, { "docid": "7380104", "title": "", "text": "it is not enforceable in this case. As we noted in Rosa, an “unorthodox [appellate waiver] agreement presents grave dangers and implicates both constitutional questions and ordinary principles of fairness and justice” necessitating “a close look.” Rosa, 123 F.3d at 99. Taking that “close look,” we first note that Goodman received very little benefit in exchange for her plea of guilty. She pleaded guilty to the one count of mail fraud charged in the information, and the Government conceded that this was the only one of Goodman’s alleged activities that it believed it could prove if the case went to trial. Second, although Goodman obtained the Government’s agreement to recommend a four-level downward adjustment for her role in the offense and a two-level adjustment for her acceptance of responsibility, she received neither reduction at sentencing. Third, although Goodman assured the District Court that she had read the plea agreement and understood the waiver provision, the sentencing judge’s statement to Goodman during the plea allocution left her understanding of the provision in considerable doubt. Judge Ar-cara suggested, contrary to the language of the agreement, that Goodman would retain the right to appeal her sentence if he concluded that either an upward departure or an offense level different from the stipulated level was appropriate. Finally, we note that the discrepancy between the sentence imposed — thirty months in prison — and the predicted sentencing range — ten to sixteen months — is substantial. The sentence im posed is nearly twice as long as the high-end of the predicted guideline range. In light of all of these circumstances, we will not enforce the broad form of waiver in this ease, one that would subject the defendant to “a virtually. unbounded risk of error or abuse by the sentencing court.” Rosa, 123 F.3d at 99. And, as in Martinez-Rios, we conclude that the appropriate remedy is to sever the waiver from the remainder of the plea agreement and consider the merits of Goodman’s sentencing appeal. See Martinez-Rios, 143 F.3d at 669. B. Reduction for Role in the Offense Section 3B1.2 of - the Guidelines" }, { "docid": "13858997", "title": "", "text": "of movement from his mid-chest down and confining him to a wheelchair. In addition, Fisher suffers from decubitus ulcers and has undergone a colostomy, which periodically results in bouts of infection. On February 17, 1994, Fisher entered a plea of guilty to one count of a two count indictment charging him with the offense of distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1). At the sentencing hearing on April 19, 1994, Fisher’s counsel requested a six level downward departure pursuant to U.S.S.G. § 5H1.4 on the basis that Fisher is infirm, a paraplegic, and has developed serious complications. Without making reference to the request for downward departure, the district court judge sentenced Fisher to the maximum sixteen months imprisonment, commencing forthwith, to be followed by three years of supervised release. Fisher filed a notice of appeal on April 25, 1994. Simultaneously Fisher filed a motion for an order staying the execution of his sentence of confinement and releasing him pending appeal. On May 6,1994, the district court, without findings, denied the motion. The order was entered on May 10, 1994. Meanwhile, Fisher had, on April 29, 1994, been transported to his designated place of confinement. II. Discussion — Disposition. a. Downward Departure under U.S.S.G. § 5Hl.lt,. Fisher argues the district court abused its discretion, or, alternatively erred in failing to depart downward as provided for pursuant to U.S.S.G. § 5H1.4. “[W]e review the application of the sentencing guidelines for errors of law, while factual determinations made by the trial court are reviewed for clear error.” United States v. Diggs, 8 F.3d 1520, 1526 (10th Cir.1993). As a general rule, “this court does not have jurisdiction to hear a defendant’s appeal from the district court’s discretionary refusal to depart downward from the Sentencing Guidelines.” Id.; see United States v. Holsey, 995 F.2d 960, 963 (10th Cir.1993). However, “a sentence imposed within the guideline range only because the court erroneously believed that the guidelines did not permit a downward departure is a sentence ‘imposed as a result of an incorrect application of the sentencing guidelines,’ 18 U.S.C.A. §" }, { "docid": "3789370", "title": "", "text": "him to 51 months. Zweber’s range was 41-51 months; the court sentenced him to 41 months. The court did not grant the recommended role reductions. Although the court assumed that the defendants were a part of the Webber/Bennett network, it held that any § 3B1.2 reduction must be based on their roles in the offenses of which they were convicted, not the conspiracy conduct. The defendants complained that members of the Webber/Bennett ring got lighter sentences than they did, despite the fact that they were lower in the hierarchy. All of the co-conspirators but Webber, the top dog, got 27 months or less. The defendants sought a departure based on the unfair sentence disparity. The court refused, reiterating that they acted independently in respect to the charged offenses. When the court granted neither role reductions nor downward departures to the defendants, they moved to withdraw their guilty pleas. The judge denied their motions, finding that the defendants’ representation by their attorneys had not been ineffective, and that he had ensured that the défendants understood that the government’s recommendations were not binding on the court. JURISDICTION We have no jurisdiction to review a trial court’s refusal to depart downward in sentencing a defendant under the Guidelines, as long as the court in fact exercised its discretion. United States v. Pelayo-Bautista, 907 F.2d 99, 101 & n. 1 (9th Cir.1990); United States v. Morales, 898 F.2d 99 (1990). The district court did not fail to exercise its discretion in considering Hud son’s and Zweber’s downward departure requests, so we have no jurisdiction to review its denial of those requests. We have jurisdiction to review the defendants’ other sentencing claims under 18 U.S.C. § 3742. DISCUSSION 1. ROLE REDUCTIONS A. Standard of Review Hudson and Zweber raise both legal and factual issues. The issue of whether a defendant is a minor or minimal participant in a criminal offense under the particular facts of the offense is reviewed for clear error. United States v. Gillock, 886 F.2d 220, 222 (9th Cir.1989) (per curiam). The district court’s legal interpretation of the Guidelines is reviewed de" }, { "docid": "6585334", "title": "", "text": "as a matter of law, but because he did not believe departure was warranted under the facts of this case. Compare United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir.1990) (remand necessary because it was not clear whether district judge recognized that he had authority to depart downward on account of defendant’s family ties and responsibilities). Thus, we do not review the district court’s refusal to depart downward. Mitchell also argues that the district court should have departed downward because his criminal history category overrepresented the seriousness of his criminal history. Mitchell’s challenge to the use of various offenses in calculating the criminal history score has been abandoned on appeal, and his argument is simply that the court should have departed downward. Once again, however, the sentencing transcript does not indicate that the court was under the impression that the guidelines absolutely precluded downward departure on this basis. Accordingly, we do not review the court’s refusal to depart downward. McKnight, 953 F.2d at 906. Finally, Mitchell contends that the district court erred in failing to formally accept his guilty plea before imposing the sentence. The court’s judgment finding Mitchell guilty was entered December 18, 1989, three days after sentencing. While we agree that it is preferable for judges to announce their acceptances of guilty pleas in open court prior to sentencing, any error that occurred here was harmless. The judge made an explicit finding at the plea hearing that Mitchell was pleading guilty freely and voluntarily, so the delay of three days between imposition of sentence and the formal finding of guilt deprived Mitchell of no constitutional or statutory right. Moreover, the transcript of the sentencing proceedings indicates that all parties under stood that the judge had found Mitchell guilty and accepted the plea agreement, III. CONCLUSION Mitchell must be resentenced to reflect the unforeseeability to him of the extent of the conspiracy, and the district judge must rule on the Government’s § 5K1.1 motion prior to imposing the sentence. For these reasons, Mitchell’s sentence is VACATED and REMANDED for further proceedings consistent with this opinion. . Aura Rey" }, { "docid": "8440637", "title": "", "text": "in the potential trial of his co-defendant. The district court ultimately found he failed to meet the threshold burden for an evidentiary hearing. As to Holbdy’s sentence, the district court determined the Guidelines range for Count I was 151 to 188 months based on an adjusted offense level of 29 and a criminal history category of VI. The court then applied the 60-month mandatory minimum consecutive sentence for Count V. Over the government’s objection, the district court granted his motion for a downward variance from the Guidelines range and sentenced him to 195 months for both counts, representing a 16-month downward variance. This appeal followed. Holbdy first challenges the district court’s refusal to hold an evidentiary hearing on the government’s failure to move for a substantial assistance downward departure. He claims the government was acting irrationally in failing to so move, arguing the government minimized and inaccurately represented his cooperation. Specifically he claims it was irrational for the government not to credit the information he provided about his childhood friend because his arrest was based on an independent police investigation. He further contends the government erroneously concluded his cooperation against Coleman was not beneficial, as he had already pled guilty. Finally, he argues the government is punishing him based on its “erroneous conclusion” he did not cooperate initially. Under 18 U.S.C. § 3553(e), “[ujpon motion of the Government,” a district court can impose a sentence below a statutory mandatory minimum to reflect a defendant’s “substantial assistance in the investigation or prosecution of another person who has committed an offense.” Without a government motion, the district court is without authority to impose a sentence below a statutory mandatory minimum sentence. See United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir.2003). Similarly, under Guidelines § 5K1.1, a district court may depart from the Guidelines range if the government files a “substantial assistance” motion. “These provisions merely grant the prosecutor discretion; the government has no duty to make such a motion unless it has entered into a plea agreement with the defendant that creates such a duty.” United States v. Wolf, 270" }, { "docid": "2455883", "title": "", "text": "HANSEN, Circuit Judge. Larry J. McNeil appeals from the 121-month sentence imposed upon him by the district court following McNeil’s pleas of guilty to one count of conspiracy with intent to distribute cocaine base and one count of unlawfully acquiring food stamps. McNeil contends (1) that the district court erred in its determination that he was a career offender, (2) that he was entitled to a downward adjustment for his role in the offense, (3) that the district court’s drug quantity determinations were erroneous, and (4) that the district court should have departed further downward because of the disparate treatment black defendants allegedly receive under the enhanced statutory and guideline penalties imposed for cocaine base offenses. The government cross appeals, arguing that a downward departure was not justified. We affirm in part and reverse and remand in part. I. At sentencing, the district court determined that McNeil was a career offender based on his two prior state court convictions in North Carolina for breaking and entering dwellings. Applying U.S.S.G. § 4B1.1, the district court determined a base offense level of 32 for McNeil. The court awarded him a three-level reduction in his base offense level for acceptance of responsibility, see U.S.S.G. § 3E1.1(b), and initially assigned him a criminal history category of VI, which resulted in a presumptively correct guidelines sentencing range of 151 to 188 months. Relying on United States v. Smith, 909 F.2d 1164, 1169-70 (8th Cir.1990), cert. denied, 498 U.S. 1032, 111 S.Ct. 691, 112 L.Ed.2d 682 (1991), and United States v. Senior, 935 F.2d 149, 151 (8th Cir.1991), the district court, over the government’s objection, granted McNeil’s motion for a downward departure pursuant to U.S.S.G. § 4A1.3, finding that a criminal history category of VI overstated the seriousness of McNeil’s past criminal conduct. The court departed downward to criminal history category IV with a resultant sentencing range of 121 to 151 months. The district court then sentenced McNeil to a 121-month term to be served concurrently with both a 10-year Iowa state sentence McNeil was then serving for sexual abuse in the third degree and a" }, { "docid": "7556673", "title": "", "text": "Happen accounts. Harness made numerous payments to cover his personal obligations, including mortgage payments and credit card debts. One of the more egregious diversions by Harness involved a $24,000 payment to Advocacy, which was diverted by James Holland to purchase a van for Harness’s personal use. To hide then-fraudulent diversion of funds, Harness and the Hollands fabricated payments to landlords that were supposedly made on behalf of needy applicants and falsified records in Project Happen’s books. The Hollands were also actively engaged in the conspiracy, and wrote numerous fraudulent checks and created false documentation to cover their activities. The FBI estimated that the defendants illegally diverted in excess of $100,000. Harness and the Hollands were charged in an eight-count indictment that alleged numerous violations of federal law. Harness pleaded guilty to five of the counts and testified on behalf of the government against the Hollands. The district court accepted Harness’s guilty plea and sentenced him to twenty-seven months’ imprisonment followed by twenty-four months’ supervised release. The court enhanced Harness’s offense level two levels for his aggravating role and two levels for his abuse of a position of trust. The court also declined to grant the government’s motion for a downward departure for substantial assistance. Harness did not object to the probation officer’s findings of fact and sentencing recommendations in his presentence investigation report (PSR) and did not object after the district court imposed the sentence. Harness now appeals his sentence, arguing that the district court’s adjustments and refusal to depart downward were erroneous. II. Standard of Review We review the district court’s application and interpretation of the Sentencing Guidelines under the de novo standard, but review its findings of fact only for clear error. See United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir.1997); United States v. Williams, 51 F.3d 1004, 1011 (11th Cir.1995). Because Harness did not object to the probation officer’s or the district court’s findings of fact and sentencing calculations, we are limited to reviewing his claims of error for the first time on appeal under the plain error standard to avoid manifest injustice. See United" }, { "docid": "396452", "title": "", "text": "BRIGHT, Senior Circuit Judge. John B. Ruklick appeals the sentence imposed following his guilty plea to distributing more than ten grams of LSD in violation of 21 U.S.C. § 841(a)(1), (b)(l)(A)(v) (1988). On appeal, Ruklick contends that the district court erroneously believed it could not depart downward under section 5K2.13 of the Sentencing Guidelines, see United States Sentencing Commission, Guidelines Manual, § 5K2.13, p.s. (Nov. 1989) [hereinafter U.S.S.G.], unless diminished mental capacity amounted to a but-for cause of his offense. Ruklick further argues that the district court incorrectly calculated the total weight of the controlled substances for which he was accountable. The record reveals that the district court misunderstood the extent of its authority to consider Ruklick’s diminished mental capacity as a basis for downward departure. Accordingly, we reverse and remand for resentencing on this narrow issue. 1. BACKGROUND On February 23, 1989, the Government indicted Ruklick on three counts of distributing LSD, two counts of distributing MDMA and one count of conspiracy to distribute LSD and MDMA. According to the presentence report, these counts encompassed 211.37 grams of LSD and 77.96 grams of MDMA. The calculation for the weight of the LSD included the weight of the blotter paper containing the LSD. Based on the combined weights for the LSD and MDMA, the Guidelines dictated a sentencing range of 151 to 188 months imprisonment notwithstanding that Ruklick was a first-time offender and had demonstrated affirmative acceptance of responsibility. On April 25, 1989, Ruklick pled guilty to one count of distributing LSD. The plea agreement dismissed the remaining counts against Ruklick, but left the drug quantity open. At sentencing, Ruklick argued that the weight calculation for the LSD should not include the weight of the blotter paper. The district court rejected this argument and adopted the presentence report’s calculation of drug quantity. At that time, Ruk-lick presented no other objections to the drug quantity calculations. In addition, Ruklick argued for a downward departure premised on diminished mental capacity under U.S.S.G. § 5K2.13. In support of this theory, Ruklick presented evidence that his offense resulted, in part, from emotional difficulties stemming" }, { "docid": "22278020", "title": "", "text": "and rejected the argument that, under such circumstances, a sentencing court’s consideration of conduct extrinsic to the plea agreement is unfair or inequitable. See United States v. Scroggins, 880 F.2d 1204, 1212-13 (11th Cir.1989). We said in Scroggins: The guidelines clearly indicate that such conduct is relevant to sentencing; thus, appellant by no means received a sentence that he could not have anticipated — to the contrary, appellant could have predicted that the court would so act. Nor did the Government’s agreement to drop count one of appellant’s indictment somehow impliedly preclude the district court from considering evidence of appellant’s other thefts — under guideline sentencing, counsel cannot bind the sentencing discretion of the district judge or cloak the facts to reach a result contrary to the guidelines’ mandate. Id. at 1214. We therefore reject Castella-nos' contention that the district court’s consideration of conduct other than that to which Castellanos stipulated in his plea agreement deprived him of the due process of law. B. The Refusal to Make a Downward Departure Castellanos challenges the district court’s denial of the Government’s motion, pursuant to section 5K1.1, for a downward departure based on Castellanos’ substantial assistance to the Government. This court has held that, pursuant to 18 U.S.C. § 3742(a), a defendant may not appeal a court’s refusal to make a downward departure. See United States v. Fossett, 881 F.2d 976, 979 (11th Cir.1989) (defendant may appeal only upward departure, not refusal to depart downward). In Fossett, however, we permitted the appeal because the appellant argued that the district court was not aware of its authority to depart from the guideline sentencing range. We agreed that such a challenge presented a appealable claim. Id.; see 18 U.S.C. § 3742(a)(1), (2) (defendant may appeal if sentence was imposed in violation of law or as result of incorrect application of guidelines). In the current case, Castellanos’ challenge is based largely on the merits of the district court’s refusal to depart and, as such, would not be appealable. He also points, however, to Sentencing Guidelines § 1B1.7, which states that “[fjailure to follow [the guidelines’]" }, { "docid": "22270390", "title": "", "text": "view of the confused state of the record on this issue, the course of prudence is to vacate Briggs’ sentence and remand for reconsideration of his sentence with respect to the $17,500 fine imposed upon him. 4. The Sentences of Simmons and Rodriguez. Simmons and Rodriguez appeal the sentences imposed after their guilty pleas. Simmons claims that he should have received a downward departure in his criminal history category under the Sentencing Guidelines. Rodriguez contends that she should have received a downward departure based on her cooperation with the government, notwithstanding the government’s failure to make a motion for such departure under 18 U.S.C. § 3553(e) (1988) or U.S.S.G. § 5K1.1, p.s. Both Simmons and Rodriguez entered into plea agreements with the government that stated: The parties further agree that should the Court sentence [the defendant] on the lesser offense included in Count One [the narcotics conspiracy], as specified above, within the range set forth in the third paragraph of this Agreement, neither the Government nor the defendant will file a notice of appeal in the district court for review of the sentence imposed on that offense. Both of their sentences on the narcotics conspiracy count were within the agreed range. Thus, they have waived their right to appeal the sentences imposed with respect to that offense. Simmons and Rodriguez were also each given a consecutive sixty-month sentence on their firearms convictions, which is the mandatory minimum sentence required by statute. See 18 U.S.C. § 924(c)(1) (1988 & Supp. II 1990). Simmons’ argument for a downward departure in his criminal history category would have no effect upon this mandatory minimum, and the court’s refusal to depart downward is not appealable in any event. See 18 U.S.C. § 3742(a) (1988) (providing four categories in which appeal by defendant allowed, refusal to depart downward not included); United States v. Colon, 884 F.2d 1550, 1552-56 (2d Cir.) (foreclosing appellate review of court’s decision not to depart downward), cert. denied, 493 U.S. 998, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989). Rodriguez’ argument for a downward departure from the mandatory minimum, notwithstanding the government’s refusal" }, { "docid": "22477022", "title": "", "text": "guidelines, we review factual determinations for clear error and legal questions de novo. United States v. Blake, 81 F.3d 498, 503 (4th Cir.1996); United States v. Singh, 54 F.3d 1182, 1190 (4th Cir.1995). We find no error in the district court’s calculations. Martinez argues that conspiracy to commit murder cannot constitute the underlying crime because he was acquitted on the murder counts in this ease. An acquittal on particular counts, however, does not prevent the district court from using those offenses in computing the applicable sentencing guidelines. See United States v. Kimberlin, 18 F.3d 1156, 1160 (4th Cir.), cert. denied, 513 U.S. 843, 115 S.Ct. 131, 130 L.Ed.2d 74 (1994); United States v. Isom, 886 F.2d 736, 738-39 (4th Cir.1989); United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir.1985). Accordingly, Martinez’s appeal on this issue fails. VI. The defendants’ final assignment of error is also without merit. Cox argues that the district court erred in deferring its determination of his ineffective assistance of counsel claim and his request for a downward departure to post-conviction collateral review. We review de novo a district court’s ruling on whether a factor is a permissible basis for departing from the sentencing guidelines as a question of law. Koon v. United States, 518 U.S. 81,---, 116 S.Ct. 2035, 2046-48, 135 L.Ed.2d 392 (1996). Cox claims that the misinformation trial counsel gave him about the sentencing guidelines during plea discussions was so incorrect as to distort his choice and undermine his ability to make an intelligent decision about whether to plead guilty. The claim is that trial counsel believed that Cox’s exposure under the guidelines was 170 months (15 years), but that Cox’s actual exposure was 270 months (22-1/2 years). The plea offer involved mentioned a sentence of 132 months (11 years) assuming a three-level downward adjustment for acceptance of responsibility. Cox says he would have accepted the government’s plea offer had his trial counsel accurately predicted his exposure. A defendant can raise the claim of ineffective assistance of counsel in three ways: (1) in a motion for a new trial based on anything other" } ]

[ { "docid": "2231699", "title": "", "text": "knowledge of his right to appeal may not be deprived of the effective assistance of counsel by the failure of his attorney to advise him of this right. We hold that the petitioner in his application for a writ of habeas corpus in the present ease has alleged facts which, if true, may have constituted a violation of his right to the effective assistance of counsel and that he was entitled to an evidentiary hearing. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473. The dissenting opinion suggests the drawing of a distinction between court-appointed and privately retained attorneys with respect to the right of a defendant to the effective assistance of counsel in the form of advice as to the right to appeal. We follow the majority opinion in United States ex rel. Smith v. McMann, supra, in holding that a defendant may be deprived of the effective assistance of privately retained counsel. See also Atilus v. United States, 406 F.2d 694 (5th Cir.). We remand the case to the District Court with instructions to appoint counsel to represent petitioner and to conduct an evidentiary hearing to determine whether petitioner was denied an appeal by reason of his lack of knowl edge of his right and the failure of his counsel or the court to advise him of his right to appeal with the aid of counsel. Vacated and remanded. O’SULLIVAN, Senior Circuit Judge (dissenting). I regret my need to dissent. This matter involves but another of the now multitudinous, and most often meritless, applications for habeas corpus relief by state prisoners. Here petitioner Goodwin asks the District Judge to command the State of Ohio to entertain, out of time, a plenary appeal from his conviction of the crime of rape. He was convicted of such offense upon a jury trial in the Court of Common Pleas of Hamilton County, Ohio, at which trial Goodwin was represented by privately retained counsel. On April 11, 1963, he was sentenced to serve a term of three to twenty years. The petition before us was filed in the" } ]

[ { "docid": "22257461", "title": "", "text": "the distinction was the earlier one that referred to a principal-agent relationship between defendant and defender. That explanation was forcefully attacked as simply unrealistic in fact in most cases. Whatever the rationale, if the distinction had not been discarded before Gideon, Massiah, and Escobedo, it would seem now to be effectively foreclosed. [Referencing basis of Gideon that a man is not competent to represent himself at trial and therefore would seem to be incompetent to evaluate his lawyer’s actions]. See also Williams, The Twilight of State Action, 41 Tex.L.Rev. 347 (1963).” This Court’s decision in Bell v. Alabama applies to retained counsel the low standard of effectiveness required by Williams v. Beto which would do no more than prevent the trial from becoming “a farce, or a mockery of justice.” We hold that the applicable standard should be that stated in MacKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592, 599: “We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not error-less counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” (Emphasis by the Court.) To “administer justice without respect to persons, and do equal right to the poor and to the rich” we must apply the same standard, whether counsel be court-appointed or privately retained. From the facts of this case it is plain that West’s lawyer fell far short of this standard. West might just as well have had no lawyer. By his own admission West’s attorney conferred with West for no more than an hour prior to trial, and perhaps for little more than five minutes. He conducted no investigation. At the trial he called no witnesses for the defense. After the prosecution presented its ease, the defense moved for a directed verdict. When the court de~ nied this motion, the defense immediately rested. We hold that the district court was correct in finding that West’s legal representation was so inadequate as to deny his constitutional rights. IV. Finally, the State argues that West’s petition should have been denied" }, { "docid": "11789776", "title": "", "text": "of counsel, which requires a showing of good cause — the constructive denial of counsel. See, e.g., United States v. Moore, 159 F.3d 1154, 1158 (9th Cir.1998) (“[I]f the relationship between lawyer and client completely collapses, the refusal to substitute new counsel violates [the defendant’s Sixth Amendment right to effective assistance of counsel.”). On the other hand, a defendant who moves to replace existing counsel with retained counsel may rely on either her right to choice of counsel or her right to effective assistance of counsel. “When there is no threat of a delay in the proceedings,” she may, consistent with her right to choice of counsel, freely substitute one retained counsel for another, without showing that “the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense.” Torres-Rodriguez, 930 F.2d at 1380 & n. 2; see also id. at 1380 n. 2 (“If a defendant, much in advance of trial, wishes to substitute retained counsel for an appointed one, and no delay in trial will result, ... there is no reason to deny substitution whether or not the defendant has complaints against, or an irrevocable conflict with, his appointed counsel.”). Where substitution would result in delay, the defendant may replace existing counsel with retained counsel, but, consistent with her right to effective assis tance of counsel, may do so only upon a showing of good cause. See id. at 1380 & n. 2; see also 3 LaFave, supra, § 11.4(c), at 716 (“As in the replacement of appointed counsel, if the defendant can establish that his current counsel would not be able to give him competent representation (as where a conflict of interest exists), the defendant’s constitutional right to the effective assistance of counsel demands granting such continuance as is necessary to substitute new [retained] counsel.”). Retained to Appointed Substitution. Unlike the appointed-to-appointed and retained- or appointed-to-retained scenarios discussed above, the question presented here is what standard applies to a defendant’s motion to replace retained counsel with appointed counsel. Some courts have held that this scenario" }, { "docid": "23159187", "title": "", "text": "indication that the applicable rule would be different— quite the contrary, for the Court cites Fay v. Noia in the course of its discussion. We think that Henry limits Fay v. Noia at least to this extent — that it stands for the proposition that counsel’s decision, although made “without prior consultation with an accused,” to by-pass the contemporaneous-objection rule as part of trial strategy, will nevertheless “preclude the accused from asserting constitutional claims” (id. at 451, 85 S. Ct. at 569). Thus the broad language in Fay, to the effect that the decision (there, a decision not to appeal) must be the choice of the petitioner, and that a choice made by counsel, not participated in by petitioner, does not automatically bar relief, does not here apply. Does the fact that here there was prior consultation with the accused, and that he disagreed with counsel’s strategy, make a legal difference? This question has not been before the Supreme Court. Our view is that the result should be the same. Our reasons are that only counsel is competent to make such a decision, that counsel must be the manager of the law-suit, that if such decisions are to be made by the defendant, he is likely to do himself more harm than good, and that a contrary rule would seriously impair the constitutional guaranty of the right to counsel. (See Rhay v. Browder, 9 Cir., 1965, 342 F.2d 345). One of the surest ways for counsel to lose a lawsuit is to permit his client to run the trial. We think that few competent counsel would accept retainers, or appointment under the Criminal Justice Act of 1964, to defend criminal cases, if they were to have to consult the defendant, and follow his views, on every issue of trial strategy that might, often as a matter of hindsight, involve some claim of constitutional right. (See Mitchell v. United States, 1958, 104 U.S.App.D.C. 57, 259 F.2d 787, 793). Bad faith on counsel’s part, or incompetence, are something else. There is no claim of bad faith. Nelson’s claim, asserted for the first" }, { "docid": "18444768", "title": "", "text": "States, 9 Cir., 1903, 321 F.2d 934, 944, Judge Barnes said for this court: “It is well recognized in the federal courts that the existence of a conflict of interest on the part of counsel representing two different defendants deprives the accused of the effective assistance of counsel.” See also Sanchez v. Nelson, 9 Cir., 1971, 446 F.2d 849, 850. It is true that in Marshall’s case, counsel was retained. That fact, however, at least in this ease, is not a basis for upholding the judgment. We are committed to the proposition that, where counsel is competent, he, rather than his' client, is the master of the lawsuit. See: Kuhl v. United States, 9 Cir., 1966, in banc, 370 F.2d 20, 27. We think that this proposition applies as much to appointed counsel as it does to retained counsel. But we have never held that the fact that counsel is retained is an absolute bar to the claim that a defendant did not have the effective assistance of counsel. This notion has been supported on two theories: (1) that the defendant has selected his own agent and is therefore bound by what his agent does, and (2) that, in state eases, what retained counsel does is not state action. We need not consider the second theory, because this is a direct appeal in a federal case. The first theory breaks down in the face of the fact that most criminal defendants who can retain counsel are not in any position to judge the competence of the lawyer whom they hire. They have to take him on faith — in reliance on the fact that he has been admitted to practice. Unfortunately, that fact does not guarantee that he is competent to defend a criminal case. Most of the recent cases have held that competence of counsel is to be judged by the same standard, whether counsel be appointed or retained. See: West v. State of Louisiana, 5 Cir., 1973, 478 F.2d 1026, 1032 to 1034; Goodwin v. Cardwell, 6 Cir., 1970, 432 F.2d 521, 522. We agree, although we reserve" }, { "docid": "22046662", "title": "", "text": "an inquiry into prejudice would require “unguided speculation.” . This court, in United States v. Marshall (9th Cir. 1973) 488 F.2d 1169, rejected the notion that waiver theories can be applied to cases of incompetent counsel, (“The [waiver] theory breaks down in the face of the fact that most criminal defendants who can retain counsel are not in any position to judge the competence of the lawyer whom they hire. They have to take him on faith — in reliance on the fact that he has been admitted to practice. Unfortunately, that fact does not guarantee that he is competent to defend a criminal case.” 488 F.2d at 1193.) in holding that the same standard of effective assistance of counsel applied in cases of retained counsel as in cases of appointed counsel. The rule of Wainwright v. Sykes (1977) 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594, does not apply to habeas petitions challenging the competency of counsel, 433 U.S. at 88 n. 12, 97 S.Ct. at 2507; nor should the reasoning behind Wainwright suggest that the harmless error approach be applied to denials of the effective assistance of counsel. Justice White, in his concurring opinion in Wainwright, noted that claims of ineffective assistance of counsel could not be precluded by the collateral attack rules. 433 U.S. at 99, 97 S.Ct. at 2513 (White, J., concurring). Justice Stevens stated in his concurrence that “assuming the lawyer’s competence, the client must accept the consequences of his trial strategy.” 433 U.S. at 95 n. 2, 97 S.Ct. at 2510 (Stevens, J., concurring) (emphasis supplied). . See Wainwright v. Sykes (1977) 433 U.S. 72, 118, 97 S.Ct. 2497, 2523, 53 L.Ed.2d 594 (Brennan, J., dissenting) (“Obviously, as a practical matter, a trial counsel cannot procedurally waive his own inadequacy.”) . Claims of incompetent counsel are distinguishable from claims of other kinds of error, because incompetence claims turn on the reasons for an attorney’s failure to present a defense, rather than simply the merits of the defenses themselves. The majority’s fear that collateral attack rules will be undermined must rest on a distrust" }, { "docid": "12221918", "title": "", "text": "the accused and counsel appointed to represent him. Compare Hendrickson v Overlade, 131 F Supp 561, 562 (ND Ind) (1955), with United States v Broy, supra. See also Annotation, Conviction-In competency of Counsel, 74 ALR2d 1390. Recent constitutional developments may call into question the premises of older precedents as to the scope of the right to counsel. Consistent with at least the implications of our approach to the problem in Broy, United States v Kraskouskas, 9 USCMA 607, 26 CMR 387 (1958), and United States v Pointer, 18 USCMA 587, 40 CMR 299 (1969), the Court of Appeals for the Third Circuit has held that, whether a lawyer represents a fee-paying client or an indigent for whom he has been appointed, the standard for assessing the adequacy of his service is “as in other professions . . . the exercise of the customary skill and knowledge which normally prevails at the time and place.” Moore v United States, 432 F2d 730, 736 (1970); United States ex rel. Green v Rundle, 434 F2d 1112 (CA3d Cir) (1970). Similarly, although not articulated as principle, in assessing the effectiveness of counsel’s representation of the accused in connection with a plea of guilty, the Supreme Court of the United States has spoken of “reasonably competent advice” and “advice . . . within the range of competence demanded of attorneys in criminal cases.” McMann v Richardson, 397 US 759, 770-771, 25 L Ed 2d 763, 90 S Ct 1441 (1970). For the purpose of this appeal, we need not resolve the differences between the parties or predict the current of future constitutional principle. We assume that the accused is entitled to the assistance of an attorney of reasonable competence, whether that attorney is one of his own selection or appointed for him. One of the accused’s major allegations of incompetence is that his civilian counsel did not understand that under a charge of premeditated murder, the court-martial could find him guilty of unpremeditated murder or such other lesser homicide offense as the evidence might indicate. Apparently when retained, civilian counsel viewed the probable evidence as" }, { "docid": "22079071", "title": "", "text": "in part). I am glad to see even partial dissipation of the anomaly of different constitutional consequences from ineffectiveness of retained counsel and ineffectiveness of appointed counsel in criminal eases. Torn between this distasteful anachronism on one hand and the concept of state action on the other, and with two competing lines of authority in this circuit, the majority stake out a new but intermediate position. I would go the whole way and hold that the due process clause of the Fourteenth Amendment assures a criminal defendant effective representation of counsel whether the attorney is court appointed or retained. 1. Fourteenth Amendment due process, with and without incorporation None will disagree with Judge Clark’s statements that fundamental unfairness in the state trial of a criminal defendant violates Fourteenth Amendment due process. In a case where the fundamental unfairness complained of is ineffectiveness of counsel, the ultimate contention is that because the defendant lacks the essential tools for defense his trial is unfair and thus lacking in the due process guaranteed by the Fourteenth Amendment. See Craig, The Right to Adequate Representation in the Criminal Process: Some Observations, 22 S.W.L.J. 260, 272 (1968), quoted by Judge Wisdom, writing for this court in West v. Louisiana, 478 F.2d 1026 at 1033 (5 Cir. 1973); Note, Effective Assistance of Counsel for the Indigent Defendant, 78 Harv.L.Rev. 1434, 1437 (1965). Judge Clark, however, draws a distinction between cases which involve the due process clause “standing alone,” that is, without incorporation of Sixth Amendment right to counsel, and cases in which the Sixth Amendment right is incorporated into Fourteenth Amendment due process. He considers that cases of the latter type cover a greater range of counsel errors than does the fundamental fairness standard of the due process clause as solely embodied within the Fourteenth Amendment, but in these latter cases he is willing to find due process applicable to only the situation in which some responsible state official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the accused. This distinction coincides remarkably with the" }, { "docid": "2393140", "title": "", "text": "another lawyer. He conceded that he rejected an offer of a plea of voluntary manslaughter, a lesser included offense, without adequately explaining to his client the various degrees of homicide and the risks of a jury trial on the charge of murder. By affidavit he admitted that he was not competent to handle a murder case. The district court determined that under the totality of these circumstances appellee was denied effective assistance of counsel and granted the writ, ordering the state to retry Leggett within ninety days or to release him. On appeal the state argues that any conclusion that appellee might have been acquitted if character witnesses had been called or counsel had pursued a different defense theory is purely speculative and that appellee was adequately represented. We disagree. It is recognized that the Sixth Amendment right to effective assistance of counsel does not require errorless counsel, United States v. Johnson, 615 F.2d 1125 (5th Cir. 1980); the standard is whether counsel is likely to render and in fact renders reasonably effective assistance, Jones v. Estelle, 622 F.2d 124 (5th Cir. 1980). Here, the specific omissions on the part of the attorney as found by the trial judge indicated a lack of the amount of preparation and degree of skill reasonably required of counsel in a criminal trial. We agree with the trial court that the “inaction and mistakes support the conclusion that Leg-gett was denied effective assistance of counsel.” See Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). The fact that Leggett’s counsel was retained rather than court-appointed does not affect this determination. In the context of a constitutional violation in a criminal trial, the Fifth Circuit enunciated the standard for retained, as compared with court-appointed, counsel in Fitzgerald v. Estelle, 505 F.2d 1334 (1974) (en banc), cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975), as such poor performance as to render the proceedings fundamentally unfair. However, the distinction between retained and court-appointed counsel as to the degree of protection due to criminal defendants has been abolished by the recent Supreme Court decision" }, { "docid": "2393141", "title": "", "text": "v. Estelle, 622 F.2d 124 (5th Cir. 1980). Here, the specific omissions on the part of the attorney as found by the trial judge indicated a lack of the amount of preparation and degree of skill reasonably required of counsel in a criminal trial. We agree with the trial court that the “inaction and mistakes support the conclusion that Leg-gett was denied effective assistance of counsel.” See Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). The fact that Leggett’s counsel was retained rather than court-appointed does not affect this determination. In the context of a constitutional violation in a criminal trial, the Fifth Circuit enunciated the standard for retained, as compared with court-appointed, counsel in Fitzgerald v. Estelle, 505 F.2d 1334 (1974) (en banc), cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975), as such poor performance as to render the proceedings fundamentally unfair. However, the distinction between retained and court-appointed counsel as to the degree of protection due to criminal defendants has been abolished by the recent Supreme Court decision in Cuyler v. Sullivan, 446 U.S.-, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), followed by this circuit in Perez v. Wainwright, 627 F.2d 762 (1980) on remand from the Supreme Court. In Cuyler the Court explained: A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. We may assume with confidence that most counsel, whether retained or appointed, will protect the rights of an accused. But experience teaches that, in some cases, retained counsel will not provide adequate representation. The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers. The judgment of" }, { "docid": "22051891", "title": "", "text": "degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law. State v. Thomas, 203 S.E.2d 445, 461, (W.Va.Sup.Ct., filed Mar. 19, 1974). In reaching its conclusion, the Thomas court found Chief Justice Burger’s arguments for a higher standard of competence among America’s trial practitioners compelling. See Burger, “The Special Skills of Advocacy: Are Specialized Training & Certification of Advocates Essential to Our System of Justice?” 27 Fordham L.Rev. 227 (1973). . The A.B.A. Standards relating to defense counsel have been specifically incorporated into the guidelines for determining violations of the right to effective assistance of counsel laid down by the District of Columbia Circuit in United States v. DeCoster, 487 F.2d 1197, 1203 (D.C.Cir. 1973), and by the Wisconsin Supreme Court in State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1, 9 (1973). . Any number of steps could have been taken by Brown to seek corroboration for McQueen’s story. The possibility of a relationship between the deceased and Dr. Zoeller could have been explored as an explanation of the presence of Mary' Zoeller’s pistol in the deceased’s apartment, for example. Other areas of important investigation have been suggested in Justice Seiler’s dissent in the last Missouri Supreme Court case. McQueen v. State, 475 S.W.2d 111, 120-124 (Mo.1971). . Other circuits have found no distinction in the constitutional standard to be applied as between appointed and retained counsel. See United States v. Marshall, 488 F.2d 1169, 1192-1193 (9th Cir. 1973); West v. Louisiana, 478 F.2d 1026, 1032-1034 (5th Cir. 1973), rehearing en banc granted (Sept. 5, 1973) ; Goodwin v. Cardwell, 432 F.2d 521, 522 (6th Cir. 1970). Since Brown was appointed by the court, we do not here determine whether such a distinction should exist. We save too for another day the question, whether, in general, a different standard may be applicable as between a claim raised on direct appeal from a criminal conviction and one rasied in a collateral proceeding. Compare United States v. DeCoster, 487 F.2d 1197, 1201-1202 (D.C.Cir. 1973), with Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113. 117 (1967). ." }, { "docid": "18444767", "title": "", "text": "defense of an accused by insisting, or indeed, even suggesting that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court. In conspiracy cases, where the liberal rales of evidence and the wide latitude accorded the prosecution may, and sometimes do, operate unfairly against an individual defendant, it is especially important that he be given the benefit of the undivided assistance of his counsel without the court’s becoming a party to encumbering that assistance. Here the court was advised of the possibility that conflicting interests might arise which would diminish Stewart’s usefulness to Glasser. Nevertheless Stewart was appointed as Kretske’s counsel. Our examination of the record leads to the conclusion that Stewart’s representation of Glasser was not as effective as it might have been if the appointment had not been made. We hold that the court thereby denied Glasser his right to have the effective assistance of counsel, guaranteed by the Sixth Amendment.” Similarly, in Peek v. United States, 9 Cir., 1903, 321 F.2d 934, 944, Judge Barnes said for this court: “It is well recognized in the federal courts that the existence of a conflict of interest on the part of counsel representing two different defendants deprives the accused of the effective assistance of counsel.” See also Sanchez v. Nelson, 9 Cir., 1971, 446 F.2d 849, 850. It is true that in Marshall’s case, counsel was retained. That fact, however, at least in this ease, is not a basis for upholding the judgment. We are committed to the proposition that, where counsel is competent, he, rather than his' client, is the master of the lawsuit. See: Kuhl v. United States, 9 Cir., 1966, in banc, 370 F.2d 20, 27. We think that this proposition applies as much to appointed counsel as it does to retained counsel. But we have never held that the fact that counsel is retained is an absolute bar to the claim that a defendant did not have the effective assistance of counsel. This notion has been supported on" }, { "docid": "18444770", "title": "", "text": "to another time the question whether, in a particular ease, a different standard may be applicable when counsel is retained from that which is applicable when counsel is appointed. We have considered the question of the effective assistance of counsel in at least one case where counsel was retained without differentiating between retained and appointed counsel. See Joseph v. United States, 9 Cir. 1963, 321 F.2d 710. At the least, we are committed to the proposition that a defendant “has a constitutional right to effective assistance of counsel.” Id. at 714. See also Barber v. Nelson, 9 Cir., 1971, 451 F.2d 1017, 1019. We deal here with a specific problem, conflict of interest. In this case, counsel did in fact “slight the defense of one defendant [Marshall], for that of another [Burkle].” Sanchez, supra, 446 F.2d at 850. The court’s error in instructing the jury compounded the problem. That no one seems to have been aware of the conflict or the error does not save the conviction; rather, it emphasizes the fact that Marshall did not get the effective assistance of counsel to which he was entitled. See also Brubaker v. Dickson, 9 Cir., 1962, 310 F.2d 30, 38-39; Craig v. United States, 6 Cir., 1954, 217 F.2d 355, 359. Holland v. Henderson, 5 Cir., 1972, 460 F.2d 978, is closely in point. There, as here, retained counsel undertook to represent two • defendants. There, as here, counsel neglected the defense of one in favor of that of the other. The court held that the neglected defendent was deprived of the effective assistance of counsel. Here is what the court said: “The duality of the representation afforded Holland was nothing more than the pro forma entry of an appearance as counsel. Effective counsel does not mean errorless counsel, but in the context of joint representation and inculpatory statements otherwise inadmissible to a particular defendant, the effectiveness of counsel must square with the court’s reliance on counsel’s • engaging in full and effective cross-examination, Nelson v. O’Neill, supra, [1971, 402 U.S. 622] 91 S.Ct. 1723, 29 L.Ed.2d 222]; Glasser v. United" }, { "docid": "22670765", "title": "", "text": "252, 258-259, n. 5 (1980), we must address it. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foun dation, 402 U. S. 313, 320, n. 6 (1971). See generally R. Stern & E. Gressman, Supreme Court Practice §6.27, pp. 458-461 (5th ed. 1978). See generally Fitzgerald v. Estelle, 505 F. 2d 1334, 1345-1346 (CA5 1974) (en banc) (Godbold, J., concurring in part and dissenting in part), cert. denied, 422 U. S. 1011 (1975); West v. Louisiana, 478 F. 2d 1026, 1032-1034 (CA5 1973), vacated and remanded, 510 F. 2d 363 (1975) (en banc). See Polur, Retained Counsel, Assigned Counsel: Why the Dichotomy?, 65 A. B. A. J. 254,255 (1969). As the Court of Appeals for the Third Circuit said in United States ex rel. Hart v. Davenport, 478 F. 2d 203, 211 (1973): “A rule which would apply one fourteenth amendment test to assigned counsel and another to retained counsel would produce the anomaly that the nonindigent, who must retain an attorney if he can afford one, would be entitled to less protection. . . . The effect upon the defendant— confinement as a result of an unfair state trial — is the same whether the inadequate attorney was assigned or retained.” In certain cases, proposed Federal Rule of Criminal Procedure 44 (c) provides that the federal district courts “shall promptly inquire with respect to . . . joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation.” See also ABA Project on Standards for Criminal Justice, Function of the Trial Judge §3.4 (b) (App. Draft 1972). Several Courts of Appeals already invoke their supervisory power to require similar inquiries. See United States v. Waldman, 579 F. 2d 649, 651-652 (CA1 1978); United States v. DeBerry, 487 F. 2d 448, 452-454 (CA2 1973); United States v. Cox, 580 F. 2d 317, 321 (CA8 1978), cert. denied, 439 U. S. 1075 (1979); United States v. Lawriw, 568 F. 2d 98 (CA8 1977), cert. denied, 435 U. S. 969 (1978); cf. Ford v. United States, 126 U. S. App. D. C. 346," }, { "docid": "22440958", "title": "", "text": "that Coleman lacked a license to practice law. In the not too distant past, cases involving the claimed incompetency of counsel sometimes turned on a distinction of this sort. See, e.g., Fitzgerald v. Estelle, 505 F.2d 1334, 1336-37 (5 Cir.1974) (en banc), cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975), in which a majority of 11 held that although the state was responsible when “a lawyer’s ineffectiveness has rendered a trial fundamentally unfair, whether he be retained or appointed”, it was not when retained counsel had simply failed to meet the Sixth Amendment’s standard of effectiveness, with five judges voting to hold the latter also to be a violation. However, any distinction between retained and assigned counsel for purposes of the Sixth Amendment seems to have been swept from the boards by Cuyler v. Sullivan, 446 U.S. 335, 344-45, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980), where the Court said: A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel.... The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers. [Footnotes omitted]. Refusal to distinguish between retained and assigned counsel seems also to be required by the “jurisdictional” characterization of the Sixth Amendment right to assistance of counsel in Johnson v. Zerbst, supra, which we discuss below. The other is the argument put forward in United States v. Whitesel, 543 F.2d 1176 (6 Cir.1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2924, 53 L.Ed.2d 1062 (1977), that the word “counsel” in the Sixth Amendment is not necessarily limited to licensed attorneys. The Whitesel court looked to the Judiciary Act of 1789,1 Stat." }, { "docid": "18444769", "title": "", "text": "two theories: (1) that the defendant has selected his own agent and is therefore bound by what his agent does, and (2) that, in state eases, what retained counsel does is not state action. We need not consider the second theory, because this is a direct appeal in a federal case. The first theory breaks down in the face of the fact that most criminal defendants who can retain counsel are not in any position to judge the competence of the lawyer whom they hire. They have to take him on faith — in reliance on the fact that he has been admitted to practice. Unfortunately, that fact does not guarantee that he is competent to defend a criminal case. Most of the recent cases have held that competence of counsel is to be judged by the same standard, whether counsel be appointed or retained. See: West v. State of Louisiana, 5 Cir., 1973, 478 F.2d 1026, 1032 to 1034; Goodwin v. Cardwell, 6 Cir., 1970, 432 F.2d 521, 522. We agree, although we reserve to another time the question whether, in a particular ease, a different standard may be applicable when counsel is retained from that which is applicable when counsel is appointed. We have considered the question of the effective assistance of counsel in at least one case where counsel was retained without differentiating between retained and appointed counsel. See Joseph v. United States, 9 Cir. 1963, 321 F.2d 710. At the least, we are committed to the proposition that a defendant “has a constitutional right to effective assistance of counsel.” Id. at 714. See also Barber v. Nelson, 9 Cir., 1971, 451 F.2d 1017, 1019. We deal here with a specific problem, conflict of interest. In this case, counsel did in fact “slight the defense of one defendant [Marshall], for that of another [Burkle].” Sanchez, supra, 446 F.2d at 850. The court’s error in instructing the jury compounded the problem. That no one seems to have been aware of the conflict or the error does not save the conviction; rather, it emphasizes the fact that Marshall did" }, { "docid": "22670754", "title": "", "text": "assistance does not satisfy the Sixth Amendment right to counsel made applicable to the States through the Fourteenth Amendment. A guilty plea is open to attack on the ground that counsel did not provide the defendant with “reasonably competent advice.” McMann v. Richardson, 397 U. S. 759, 770-771 (1970); see Tollett v. Henderson, 411 U. S. 258, 267 (1973). Furthermore, court procedures that restrict a lawyer’s tactical decision to put the defendant on the stand unconstitutionally abridge the right to counsel. Brooks v. Tennessee, 406 U. S. 605, 612-613 (1972) (requiring defendant to be first defense witness); Ferguson v. Georgia, 365 U. S. 570, 593-596 (1961) (prohibiting direct examination of defendant). See also Geders v. United States, 425 U. S. 80 (1976); Herring v. New York, 422 U. S. 853 (1975). Thus, the Sixth Amendment does more than require the States to appoint counsel for indigent defendants. The right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance. A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. We may assume with confidence that most counsel, whether retained or appointed, will protect the rights of an accused. But experience teaches that, in some cases, retained counsel will not provide adequate representation. The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers. IV We come at last to Sullivan’s claim that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment because his lawyers had a conflict of interest. The claim raises two issues expressly reserved in Holloway v. Arkansas, 435 U. S.," }, { "docid": "22046661", "title": "", "text": "551 F.2d 1162, 1164. . Cooper alleges that his counsel failed to file a suppression motion, failed to object to admission of certain evidence, failed to stipulate as to Cooper’s prior conviction, and failed to inform Cooper of his right to appeal. These alleged failures to act are among the very kinds of claims that the Supreme Court in Holloway described as justifying application of the automatic reversal rule. Holloway v. Arkansas, supra, 435 U.S. at 490, 98 S.Ct. at 1181 (“Generally speaking a conflict may also prevent an attorney from challenging the admission of evidence . . ”). . The majority distinguishes Holloway as a case where “[t]he mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate’s conflicting obligations have effectively sealed his lips on crucial matters.” (Majority Opinion at 1332). Yet, from the standpoint of the state of the record, this situation is no different from one in which counsel’s incompetence has effectively sealed his lips. In either case the attorney’s failure to act means that an inquiry into prejudice would require “unguided speculation.” . This court, in United States v. Marshall (9th Cir. 1973) 488 F.2d 1169, rejected the notion that waiver theories can be applied to cases of incompetent counsel, (“The [waiver] theory breaks down in the face of the fact that most criminal defendants who can retain counsel are not in any position to judge the competence of the lawyer whom they hire. They have to take him on faith — in reliance on the fact that he has been admitted to practice. Unfortunately, that fact does not guarantee that he is competent to defend a criminal case.” 488 F.2d at 1193.) in holding that the same standard of effective assistance of counsel applied in cases of retained counsel as in cases of appointed counsel. The rule of Wainwright v. Sykes (1977) 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594, does not apply to habeas petitions challenging the competency of counsel, 433 U.S. at 88 n. 12, 97 S.Ct. at 2507; nor should the reasoning behind Wainwright" }, { "docid": "6377100", "title": "", "text": "to accept one. On May 6, appellant told the court he would be represented by the same attorney representing his co-defendants. The next day that attorney denied that he had been retained by Fillippini or had filed an appearance for him. The court again advised appellant of his right to a public defender, and appellant again refused, saying he would go forward without a lawyer as before. It came out that another attorney had been contacted, but had not yet agreed to take the case. The court again offered appointed counsel and was turned down. Fillippini assured himself that the court would assist in bringing in witnesses and offered to sign a waiver. The court repeated his praise of the public defenders, but appellant turned them down once more. Appellant signed a waiver of counsel before the case came on for retrial May 12, 1969. This case is controlled by the principles set down in Maynard v. Meachum, 545 F.2d 273 (1st Cir. 1976). There we said that a court reviewing a habeas petition cannot rely solely on the petitioner’s affirmative acquiescence in the trial procedure. “[T]he question remains whether this acquiescence was competent, intelligent and voluntary.” Id. at 277. We refused, however, to lay down specific warnings that must be given or to require a particular colloquy. Here the fact of waiver appears on the record. We need not rely on appellant’s silent acquiescence. Moreover, “the burden of proof rests upon [a habeas petitioner] to establish that he did not competently and intelligently waive his constitutional right to assistance of counsel.” Id. at 277 — 78, quoting Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Thus appellant faces significant obstacles. [A]n effective waiver must be the product of a free and meaningful choice.” 545 F.2d at 278. Here, though Fillippini might have preferred to secure counsel to replace his original counsel, the record reveals that he was unable to. The court repeatedly explained that he could have an appointed public defender specially trained in handling criminal cases, experienced, and competent. Fillippini repeatedly refused" }, { "docid": "22257458", "title": "", "text": "a pretense, or without adequate opportunity for conference and preparation”. But as then Chief Judge Tuttle said in Bell v. Alabama, 5 Cir. 1966, 367 F.2d 243, 247: “It is clear that this test [after quoting from Williams v. Beto, 354 F.2d 698, 704] applies to cases in which counsel is retained by or for an accused as well as to cases in which counsel is appointed to represent an indigent defendant. Scott v. United States, 334 F.2d 72 (6th Cir. 1964).” Earlier, Judge Brown had written for the panel of Brown,. Wisdom, and Bell in Porter v. United States, 5 Cir. 1962, 298 F.2d 461, 463, “The Constitution assures a defendant effective representation by counsel whether the attorney is one of his choosing or court-appointed.” See also Holland v. Henderson, 5 Cir. 1972, 460 F.2d 978, 981, United States v. Pinc, 5 Cir. 1971, 452 F.2d 507, the long footnote written as dictum in Breedlove v. Beto, 5 Cir. 1968, 404 F.2d 1019, 1021, and Judge Rives’s dissent in Langford v. Alabama, 5 Cir. 1970, 442 F.2d 760, 764-768. In Holland v. Henderson, E.D.La.1970, 317 F.Supp. 438, 442, aff’d, 460 F.2d 978, 981, Judge Cassibry carefully considered the question. He wrote: “Where a defendant has been denied effective assistance of counsel it does not matter, in the absence of a knowledgeable waiver, whether his counsel was court-appointed or privately employed. ‘The prejudice to a defendant from the failure to have the effective assistance of counsel results whether counsel is court appointed or selected by the accused.’ Craig v. United States, 217 F.2d 355, 359 (6th Cir. 1954) ; Cf. Larry Buffalo Chief v. State of South Dakota, 425 F.2d 271, 279 (8th Cir. 1970).” We agree with the perceptive analysis by Professor James R. Craig in his article, The Right to Adequate Representation in the Criminal Process: Some Observations, 22 S.W.L.J. 260, 272 (1968): Early lower court decisions on effectiveness of counsel often drew distinctions between retained and appointed counsel, with the work of retained counsel being virtually immune from review. That seems now, at least doctrinally, to be" }, { "docid": "22051892", "title": "", "text": "Mary' Zoeller’s pistol in the deceased’s apartment, for example. Other areas of important investigation have been suggested in Justice Seiler’s dissent in the last Missouri Supreme Court case. McQueen v. State, 475 S.W.2d 111, 120-124 (Mo.1971). . Other circuits have found no distinction in the constitutional standard to be applied as between appointed and retained counsel. See United States v. Marshall, 488 F.2d 1169, 1192-1193 (9th Cir. 1973); West v. Louisiana, 478 F.2d 1026, 1032-1034 (5th Cir. 1973), rehearing en banc granted (Sept. 5, 1973) ; Goodwin v. Cardwell, 432 F.2d 521, 522 (6th Cir. 1970). Since Brown was appointed by the court, we do not here determine whether such a distinction should exist. We save too for another day the question, whether, in general, a different standard may be applicable as between a claim raised on direct appeal from a criminal conviction and one rasied in a collateral proceeding. Compare United States v. DeCoster, 487 F.2d 1197, 1201-1202 (D.C.Cir. 1973), with Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113. 117 (1967). . In so holding, we re-emphasize the caveat expressed in Cross v. United States that courts will not allow a willful failure to investigate to be used as “an avenue by which counsel can upset the judicial processes.” 392 E.2d at 367. Such a calculated dereliction of duty by an attorney will not avail his client and would subject the attorney to disciplinary proceedings by the court. . In Chapman, the Court applied its harmless error rule to the prosecutor’s closing argument commenting at length upon the failure of the defendants to testify and to the judge’s instructions permitting inferences of guilt to be drawn from the defendants’ silence. The Court found those errors harmful. 386 U.S. at 26. Such comments were held constitutionally invalid in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)." } ]